House v. Universal Crusher Corp.

115 Va. 558 | Va. | 1913

Keith, P.,

delivered the opinion of the court.

Plaintiff in 'error instituted, in the circuit court of Russell county, an action of trespass on the case against the Universal Crusher Company. Process was issued, returnable to the first November rules, 1912, and the clerk made the following entry upon his rule book:

“1912. 1st November rules. Process executed and continued for declaration. 1912. 2nd November rules. Continued for declaration. 1912. 1st December rules. Dismissed for want of declaration.”

At the ensuing term of the circuit court the plaintiff in error moved the court to be permitted to file his declaration, to which the defendant objected; whereupon, the court rejected the motion and refused to permit the declaration to b'e filed, and the suit stood dismissed; and thereupon a writ of error was awarded by one of the judges of this court.

The petition insists that the return of the process “executed” is not sufficient, but is wholly void under section 8227 of the Code.

We do not deem it necessary to pass upon the question thus raised, for its decision is immaterial to the proper disposition of this case. Process to commence a suit is part of the record for the purpose of amendment, and the court will look to the return thereon when necessary, not only to show the date of the return, but also the date of the execution of the writ. Sands v. Stagy, 105 Va. 444.

Section 3241 of the Code provides that “if one month elapse after the process is returned executed as to any one or more of the defendants, without .the declaration or bill being filed, the clerk shall enter the suit dismissed, although none of the defendants have appeared.”

In this case the writ was returnable on Monday, November 4th, which was the first rule day. The service of process was then noted and the case was continued for a declaration. At second November rules it was again continued for a declaration, and at the December rules it was dismissed.

Now section 3236 of the Code provides that rules shall be held on the first and third Mondays in every month and shall continue for three days, but that where the term of a circuit court or the chancery court of the city of Bichmond, or of a corporation court designated for th’e trial of civil cases in which juries are required, happens to commence on the first or third Monday in a month, or on either of the two following days, the rules which would otherwise have been held on the first or third Monday, as the case may be, shall be held on the Monday of the preceding week.

The time for the commencement of the terms of the several courts is fixed by general law of which the court takes judicial notice. The December term of the circuit court of Bussell county commences, according to law, on the Tuesday after the first Monday, so that the December rules were thrown back to the last Monday in November, which occurred on the 25th The process having been returned on Monday, November 4th, and December rules occurring on Monday, November 25th, and the clerk having • entered, as appears by the record, the dismissal of the case for want of declaration at first December rules, one month had not elapsed after the process was returned executed, and it follows that the case should have been restored to the docket and plaintiff in error permitted' to file his declaration.

We are of opinion that the judgment must be reversed and the case remanded for further proceedings to be had not in conflict with this opinion.

Reversed.