10 S.E.2d 792 | W. Va. | 1940
On August 8, 1939, a summons in an action at law was issued returnable to September Rules. The summons was returned unexecuted. An alias summons was issued, returnable to October Rules, which also was returned unexecuted. On the first day of November Rules two pluries summonses were issued, one returnable that day, which was returned unexecuted, the other returnable to December Rules, which was executed. The defendant filed a timely plea in abatement reciting the facts and alleging that because of the failure of plaintiff to have issued a pluries summons at October Rules, his action was discontinued. The circuit court sustained a demurrer to the plea and certified here its sufficiency.
The plaintiff relies on Dunaway v. Lord,
When an original process has been returned unexecuted, the practice in this state has not required an uninterrupted succession of writs to maintain the existence of the suit, but only that no succeeding rules shall pass without process returnable or outstanding. See Oil Co. v. Gartlan,
The ruling is affirmed.
Affirmed. *479