48 W. Va. 139 | W. Va. | 1900
Lawrence brought an action in Kanawha County against Win-ifrede Coal Company by issuing his summons in trespass on the case, which was served on the defendant, and the plaintiff failing for three months after return of service to file his declaration, Ins action was dismissed at rules. Then he brought another action, and the defendant pleaded the statute of limitations, and to this the plaintiff tendered a replication to the effect that when the cause of action accrued to the plaintiff, he was an infant under twenty-one years of age, and did not become of age until 8th April, 1896, and that within one year thereafter he instituted the said first action by causing a summons to issue, which was served, and that three months having elapsed after the summons was executed without a declaration being filed, said
The question is whether that replication presented a sufficient answer to the plea of the statute. Section 19, chapter 104, Code 1891, provides that, “if any action, commenced within due time, in the name of or against one or more plaintiffs or defendants, abate as to one of them by the return of no inhabitant, or hy his or her death or marriage, or if in an action commenced within due time, judgment for the plaintiffs should be arrested or reversed on a ground which does not preclude a new action for the same cause, or if there be occasion to bring a new suit by reason of the said cause having been dismissed for want of security for costs, or by reason of any other cause, which could not plead in bar of an action, or of the loss or destruction of any of the papers or records in'a former suit, which was in due time; in every such case, notwithstanding the expiration of the time within which a new action or suit must otherwise have been brought, the same may be brought within one year after such abatement, dismissal or other cause, or after such arrest or reversal of judgment, or such loss or' destruction, but not after.”
It is under this statute that the plaintiff claims that his action is saved from the bar of time, since he says that the dismissal for want of declaration at rules is in terms covered by the statute. I do not think that the word “dismissal” in the state-ute applies to the case. I read the statute as saying that if there be occasion to bring a new suit .by reason of the cause having been dismissed for want of security for costs, or if there be reason to bring a new suit by reason of any other cause, then the time is saved; in other words, that word “dismissal” is limited to the case of a dismissal for want of security for costs. Then the question is in any case whether the case is one in which there is occasion to bring a new suit “by reason of any other cause, which could not be plead in bar of an action.” In this case it is clear that a non-suit for failure to file a declaration could not be pleaded in bar of another action; so that the case is within the
Another question was discussed in the ease. Counsel for the defendant raised the point that as the summons commencing the action was merely issued and served, and no declaration filed, it was not a suit within the meaning of the saving statute above quoted, and could only become such when the declaration was filed, as the summons did not call for an answer to itself, but only to a declaration.
4n examination of the books furnishes a great diversity of opinion as to when an action is to be deemed as commenced under the statute of limitations so as to stop the running of the statute; for the statute runs until a suit is commenced. Some cases hold that it is commenced when the summons issues; some
Affirmed.