29 S.E.2d 250 | W. Va. | 1944
The Circuit Court of Raleigh County sustained a demurrer to the special replication of plaintiff and upon joint motion of the parties certified its ruling to this Court.
This litigation arises by reason of a surgical operation performed in Fayette County on the plaintiff, Delphy McClung, by the defendant, A. U. Tieche, a resident of Raleigh County. Plaintiff instituted an action in the Circuit Court of Fayette County within one year after June 20, 1941, on which date she was apprised of the allegedly negligent acts of the defendant. She charged that the defendant removed certain of her organs without her *576
consent and that she was thereby rendered incapable of bearing children; that defendant actively concealed the wrongful act from her and that she brought her action in the Circuit Court of Fayette County within one year of the time defendant's alleged negligence came to her knowledge. Original and alias summons issued and were returned unexecuted and without interruption various pluries summons issued and, with an exception hereinafter noted, were likewise returned unexecuted. One of the pluries summons was served on defendant in Raleigh County. Defendant in the Fayette County action pleaded in abatement on the ground that the action was pending in the county where the cause of action arose and that process could not be served in another county. Code,
Plaintiff contends that pendency of the action in Fayette County tolled the statute of limitations as to the *577
instant case and that the remedy is saved to her by the provisions of Code,
There is no contention that the action in Fayette County was barred by the statute of limitations.
It is readily apparent that a determination of the respective contentions depends upon the consideration and application of Code,
"If any action or suit 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 by his or her death or marriage, or if, in an action or suit commenced within due time, judgment or decree (or other and further proceedings) for the plaintiffs should be arrested or reversed on a ground which does not preclude a new action or suit for the same cause, or if there be occasion to bring a new action or suit by reason of such cause having been dismissed for want of security for costs, or by reason of any other cause which could not be plead in bar of an action or suit, or of the loss or destruction of any of the papers or records in a former action or 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 decree, or such loss or destruction, but not after."
The foregoing statutory provision is designed, to remedy the harsh effect of the statute of limitations and to save *578
a cause of action which is otherwise barred. The application of the saving statute depends upon the pendency and disposition of a former action for the same cause. Having in mind its purpose and remedial character, it is to be liberally construed.Ryan v. Piney Coal Coke Co.,
An action purportedly commenced by the issuance of a void summons which is subsequently dismissed for that reason is an involuntary dismissal and the right of action is preserved.Ketterman v. Railroad Co.,
The general rule to be deduced from the foregoing decisions of the Court is that where there has been a dismissal or abatement of an action by the voluntary act of the plaintiff or conduct equivalent thereto the running of the statute of limitations is not suspended by Code,
Initially she had the right to proceed in either of two circuit courts — in Fayette County where the cause of action arose or in Raleigh County where the defendant resides. She chose the former and, so far as this record shows, pursued her remedy with diligence, but without effect, until the abortive attempt to serve process on the defendant in Raleigh County, which being held of no effect she thereupon announced her intention to abandon further prosecution of her cause in the Circuit Court of Fayette County. She may have obtained the award of other pluries summonses directed to the Sheriff of Fayette County instead of abandoning prosecution of her suit.United States Blowpipe Co. v. Spencer,
Affirmed.