The opinion of the court was delivered by

It is contended by the defendant in error that, in as much as the action was begun December 18, 1893, and that the defendant, Todd, was not a resident and not found in Lincoln county, where the action was begun, but was found by the sheriff in Logan county, and that in as much as no other service was had upon the defendant, Todd, until the 9th day of June, 1894, and no endeavor was made to procure service or to follow the attempt to procure service by publication or service of summons within sixty days after such attempt, that the action was never, in fact, commenced, and that the proceeding in replevin was, therefore, void.

This reasoning was based upon the provision, code of civil procedure, art. 3, § 20, “Time of Commencing Civil Actions,” that:

“An action shall be deemed commenced, within the meaning of this article, as to each defendant, at the date of the summons which is served upon him, or on a co-defendant, who is a joint contractor or otherwise united in interest with him. Where service by publication is proper, the action shall be deemed commenced at the date of the first publication. An attempt to commence an action shall be deemed equivalent to the commencement thereof, within the meaning of this article, when the party faithfully, properly and diligently endeavors to procure a service; but such attempt must be *366 followed by first publication or service of the summons within sixty days.”

It is the contention of the defendant in error that this section of the statute is applicable in an action in replevin, and that no such service or attempted service or publication within sixty days from the filing of the petition having been made, the action was never “commenced.”

The section referred to provides, that:

“An action shall be deemed commenced, within the meaning of this article, as to each defendant.”

But the “article” is a statute of limitations, enacted for the purpose of constituting a special defense, and bar to the action, on the ground of lapse of time between the incurring of a liability, and the attempt to enforce it by legal proceeding, and its provisions are expressly limited, by the terms of the section itself, to “the meaning of this article.” The statute does not apply to an action of replevin, unless the defendant should be here setting up the statute of limitations as a bar to recovery, which is not the case.

In general a “civil action may be commenced in a court of record, by filing in the office of the clerk of the proper court a petition and causing a summons to be issued thereon.” (Section 57, code of civil procedure, p. 771).

And art. 10, “Replevin of Property,” § 176, p. 789, provides that:

“The plaintiff, in an action to recover the possession of specific personal property, may, at the commencement of the suit or at any time before the answer, claim the immediate delivery of such property, as provided in this chapter.”

The petition having been filed and the summons having been issued in the case, the action was then *367 “commenced,” and the plaintiff had a right to then “claim the immediate delivery of the property,” and the action was commenced although the plaintiff did not follow up his endeavor to procure service by the “first publication or a service of summons within sixty days.” (Dunlap v. McFarland, 25 Kan. 341).

Afterward, the petition having been amended, and other parties having been joined in the action as defendants upon whom personal service was sought to be procured within the.county of Lincoln, while the service was not had upon the defendant, W. P. Simpson, a demurrer was sustained in behalf of W. H. Fallís, and a motion to quash the service was sustained in behalf of J. C. Simpson, which was yet overruled as to the defendant, W. N. Todd. The defendant, Todd, had his option at that time, of retiring from the case, and if he was entitled to a remedy, to pursue it in another action or forum against tbe plaintiff; or to appear generally to the action.

Having determined to appear generally, and to answer as he did, he submitted himself to the jurisdiction of the court. (Kennedy v. Beck, 15 Kan. 418; Carr v. Huffman, 47 Kan. 188).

The defendant, by his answer, avers that he was in the lawful possession of the goods in question, and remained in possession thereof. Under the law in replevin, this possession is actual possession, in person, and he ought not, in justice and equity, to have technical points or irregularities construed in his favor, so as to defeat the action upon the merits and to claim to be legally absent from the county, for the purposes of a fair trial on the issues involved, while he avers in his answer, which is ■sworn to, that he was in “legal possession,” that is, actually present, as required by law, in the county of *368 Lincoln, at the commencement of this action, even if he had not, by his answer, waived them. (Wells on Replevin, § 684).

It is our conclusion, therefore, that the district court, after the defendant, Todd, answered in the manner in which he did, accepting the jurisdiction and by his answer raising the questions of the right of lawful possession of the goods and of the legal ownership, that the case should have been heard upon its merits, as raised by the petition and answer of the defendant thereto, and that the attention of the jury should not have been confined to the ascertainment of the' value of the goods and the assessment of damages only, and that they should not have received the direction to fix the amount of recovery in behalf of the defendant and to fix the damages at a specific sum.

The case is reversed and remanded, in accordance with these views, with direction for a new trial, upon the merits as raised by the pleadings.