7 R.I. 519 | R.I. | 1863
The third replication avers, that on the 17th day of July, 1860, and within six years after the plaintiff's cause of action accrued, he, in due form of law, sued out of the Supreme Court, for the county of Providence, his writ of arrest and attachment against the defendant, returnable at the next term of said court; that, on the same day, such writ was delivered to a deputy sheriff of said county, for service, who, before the return day thereof, for want of the body of the defendant, served the same by attaching his personal estate in the hands of histrustee; that said writ was returned to the next term of said court, when the plaintiff duly declared upon his cause of action; and that afterwards, such proceedings were had in such action as that the same was defeated and abated, for the want of attachable property of the defendant in the hands of suchtrustee; and that, within one year after such abatement, the plaintiff commenced this action, and for the same cause. *522
There is nothing in this case to distinguish it in principle from the case of Eaton v. Chapin, supra, 408, decided at the last March term of this court. The replication shows, that within six years next after the time when the plaintiff's action accrued, he sued out a writ from a court having jurisdiction competent to try such an issue; that service of the writ was seasonably made, by an officer authorized to make service; that the mode of service was one recognized and allowed by the law; that the plaintiff seasonably and properly impleaded the defendant in such action; and that the same was abated, for want of sufficient service. The abatement or other defect of the first action from some cause must appear, else neither the right to, or the necessity for, thesecond action arises. The demurrer admits the several averments, as pleaded. If true, and no more appears upon the record, they show prima facie, at least, the due commencement of an action, and bring the plaintiff within the purview of the statute, (Rev. Stat. Ch. 177, § 8,) which enacts, that if the first action shall be abated or defeated, for any matter, a second action may be instituted within one year thereafter.
The mode in which the process was served, (by foreignattachment,) was referred to at the argument. We do not see how the mode of service can, of itself, control or vary the principle, so long as it be a mode recognized and allowed by the law. In Woods et al. v. Houghton, 1 Gray, 580, the mode of service was the same. There, it was not objected that the mode of service was not the due commencement of an action, but that thetrustee, being served without his county, the court had not jurisdiction.
In this case, it nowhere appears that the first action was not commenced properly and in good faith; that diligence was not used to reach the defendant in the only attainable manner, and to implead him in court upon the merits. The plaintiff was defeated by a defective service not affecting the merits. This, he is entitled to remedy by a new and proper service, if sought within the period allowed by the law.
The demurrer to the third replication is therefore overruled. *523
