6 W. Va. 447 | W. Va. | 1873
The record in this cause is exceedingly imperfect, owing, it-is alleged, to the loss of the original papers. It recites, that the plaintiff, the Exchange Bank of Virginia, sued out of the office of the county court of Gil-mer county, a writ and summons in debt, against Robert Porter &c., returnable to January rules 1857, and that said summons and writ are lost.
The record further recites, that in the clerk’s office of said county, in January 1857, the following rule was taken, and entered, in said cause; Summons executed on Harris, Nar. filed and common order vs. him, alias summons vs. the other defendants, and which Nar., and alias summons are lost. Again the record recites, that on the first Monday in February 1857, the following rule was taken and entered in said cause; Common order confirmed vs. Harris; common order vs. the other defendants; and that at the February term of said court, in the year 1857, a judgment was entered against Thomas Harris for $564,94, with the interest, as therein recited. The record then recites, that in June 1868, the Plaintiff sued out an alias summons against Robert Porter, Thomas M. Harris and A. Cyrus Hall, to appear &c., and answer the plaintiff’s plea of debt &c. At rules held in the clerk’s office, in August 1868, the summons being returned executed, said Hall appears and files a plea of abatement. To this plea the Plaintiff replied generally, but at the term of the court held in October 1868, the Plaintiff moved the Court to reject said plea, which was accordingly done, and thereupon the Defendant moved the Court to grant the writ in this cause. At the same time, the Plaintiff having obtained leave of theJCourt, on filing the affidavit of the clerk of the Court that the original writ, declaration and note, being part of the record in this cause, were lost, filed a new declaration, complaining of Cyrus Hall and others.
Under the statement of facts here presented, as appearing upon the record and in the agreement, there was unquestionably a discontinuance of this cause. The original writ and summons were sued out on the 30th day of December 1856, returnable to January rules 1857, and a common order was entered against Cyrus Hall, the party now appearing and making defence, at February rules-1857. Beyond the entrance of this common order against this Defendant, it does not appear
Tbe judgment of the Circuit Court is affirmed, with damages and costs to the Appellee, Cyrus Hall.