[WSBAPT] Probate's "Must Bring Suit"

Tue Apr 23 14:43:28 PDT 2019

Thanks Eric, I saw those old cases and the old case that said only filing will toll the statute of limitations.  I have a matter with my PR client who rejected a Creditor's Claim.  The claimant filed his complaint on the 29th day after notice of the rejection but didn't serve for five more days (ie. after the 30 days expired.)  I was exploring if it was worth trying to dismiss on grounds that it was late just in case "bring suit" for the purposes of RCW 11.40.100 meant file and serve within 30 days.  Thanks for your input.

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From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Eric Nelsen
Sent: Tuesday, April 23, 2019 2:25 PM
To: wsbapt at lists.wsbarppt.com
Subject: Re: [WSBAPT] Probate's "Must Bring Suit"

I have always interpreted "bring suit" to mean "commence an action" within the meaning of Ch. 4.28 RCW, CR 3 and RCW 4.16.170. So, either file or serve the Complaint within the required thirty days, and then complete commencement by doing the other thing within 90 days of the filing or service.

There is old case law requiring filing within the 30 days, White v. Coleman, 146 Wn. 148, 262 P. 232 (1927), but that case is based on a predecessor statute to RCW 4.16.170, RRS Sec. 167. The old statute said a case isn't commenced until the Complaint is filed, whereas the current statute says either filing or service commences a matter, so long as the other act is done within 90 days thereafter.

You might also look at Van Duyn v. Van Duyn, 129 Wn. 428 (1924), and Farmers' & Merchants' Bank of Wenatchee v. Lilly, 66 Wn. 309 (1911). But the old cases are tricky to interpret because the statutes have changed and it takes some work to trace the amendments.

Safest route, of course, is to both file and serve within the 30 days, and not risk it.

Sincerely,

Eric

Eric C. Nelsen

SAYRE LAW OFFICES, PLLC

1417 31st Ave South

Seattle WA  98144-3909

phone 206-625-0092

fax 206-625-9040

-----Original Message-----
From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Paul Neumiller
Sent: Tuesday, April 23, 2019 1:22 PM
To: wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] Probate's "Must Bring Suit"

Listmates:  RCW 11.40.100 starts by saying "(1) If the personal representative rejects a claim, in whole or in part, the claimant must bring suit against the personal representative within thirty days after notification of rejection or the claim is forever barred...."   Does that mean: (1) it is permissible for the claimant to only file the case with the court before the 30 days are up and then serve on the PR after the 30 days have expired? OR (2) the claimant must file with the court AND serve the claimant's summons and complaint before the thirty days are up?  What does "bring suit" mean?  I am finding no reported cases.  Thanks for your input. -Paul Neumiller
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