173 S.E. 568 | W. Va. | 1934
This certificate presents the ruling of the trial court on a *672 motion to quash process in each of the above styled actions, of trespass on the case, pending in the circuit court of Jefferson County, wherein the causes of action arose.
The original summons, in multiple, was issued in each case, April 13, 1933, returnable to May Rules. One copy, directed to the sheriff of Jefferson County, was returned the next day indorsed, "Not found in my bailiwick"; another, directed to the sheriff of Berkeley County, was served therein on defendant, April 15th; and another, directed to the sheriff of Jefferson County, was served therein on defendant, June 22nd. On June 28, 1933, a new summons (indorsed "Alias Writ" and returnable to August Rules), was issued in each case directed to the sheriff of Jefferson County. It was served therein on defendant, June 30th.
Upon motion of defendant, the trial court quashed all copies of the original summons, but held that the second summons was valid, if not as an alias, as an original process.
The service in Jefferson County after the return day, as well as the unauthorized service in Berkeley County was illegal upon the face of the return.
Code 1931,
Defendant contends that the clerk was not authorized under the foregoing statute to issue an alias after two copies of the original summons had been returned executed, although the service in each instance was void on the face of the return, citing Gorman v. Steed,
The original summons not having been executed, could an alias have been issued after the return date? "Process must be regularly continued from term to term, and if a hiatus is permitted to intervene between successive processes it will *674 operate as a discontinuance." 20 Ency. Pl. Pr. 1179. The same rule is announced in 21 Standard Ency. of Procedure 763, as follows: "When process has been commenced, it must be pursued without any chasm, and every subsequent process must be dated on the day of the return of the preceding one, and a failure to maintain this regular succession of writs results in a discontinuance, so far as dating the suit from the time of the issuance of the first writ is concerned." Judge Burks, in considering an identical statute of Virginia, section 188 of his work on Pleading and Practice, (1st Ed.), says: "The language of the statute is: 'If, at the return day of any process, it be not returned executed, an alias or other proper process may be issued, etc.' But, when must this alias or pluries be issued? Must it issue at that rules, or may it issue then or thereafter? The question becomes important chiefly as affecting the bar of the statute of limitations. It would seem that process to commence a suit must be continuous until a return of 'executed', is obtained, and therefore that the alias or pluries summons can only issue at the rules at which the previous process was returned unexecuted; that a failure then to issue the alias or pluries would cause a hiatus in the action and operate a discontinuance; and that to hold otherwise would be to permit a plaintiff to continue his case indefinitely at the rules and save the running of the statute of limitations for any length of time he chose." Whether an alias could have been issued within a reasonable time after the rules to which the original process was returnable, it certainly could not have been issued after the following rules.
Finally, as the summons in question could not properly have been treated as an alias, it should be held valid as an original process, commencing a new suit. "Where a suit in which a summons has been issued and returned informally goes down by reason of such informality, and the statute of limitations has not run as to the cause of action, second summons, if not sufficient as an alias summons, should be treated as a new writ for a new suit, and sustained accordingly." Frantz v. DetroitUnited Ry., (Mich.)
The ruling of the circuit court is affirmed.
Affirmed.