Jenntngs v. Pocahontas Consol. Collieries Co. Inc

• Decision Date: 21 November 1912
• Citation: 76 S.E. 298,114 Va. 213
• Parties: JENNTNGS. v. POCAHONTAS CONSOLIDATED COLLIERIES CO., Inc.
• Court: Virginia Supreme Court

76 S.E. 298

114 Va. 213

JENNTNGS.

v.POCAHONTAS CONSOLIDATED COLLIERIES CO., Inc.

Supreme Court of Appeals of Virginia.

Nov. 21, 1912.

1. Time (§ 9^*) — Computation — Excluding Day—Declaration—Time of Filing.

Code 1904, § 3241, provides that "if one month elapse after the process is returned unexecuted" as to any one of the defendants without the declaration being filed, the clerk shall enter the suit dismissed. Section 5, cl. 8, provides that where a statute requires a notice to be given, or any other act to be done, a certain time before any motion or proceeding "there must be that time exclusive of the day of such motion or proceeding, but the day on which such notice is given or act done may be counted as a part of the time." Held, that the day on which process was returned should be included in determining whether one month had elapsed without the declaration being filed, when the suit was dismissed for nonfiling.

[Ed. Note.—For other cases, see Time, Cent. Dig. §§ 11-32; Dec. Dig. § 9.*]

2. Dismissal and Nonsuit (§ 81*) — Reinstatement.

A case dismissed by the clerk for failure to file the declaration within time can be reinstated only upon a showing of sufficient legal reason, and will not be reinstated where the causes preventing filing could have easily been foreseen and obviated, especially where to reinstate would deprive defendant of the defense of limitations.

[Ed. Note.—For other cases, see Dismissal and Nonsuit, Cent. Dig. §§ 182-192; Dec. Dig. § 81.*]

Error to Circuit Court, Tazewell County.

Action by George Jennings, by his next friend, against the Pocahontas Consolidated Collieries Company, Incorporated. Judgment dismissing a petition to reinstate the case after dismissal for failure to file the declaration within time, and plaintiff brings error. Affirmed.

Sexton & Roberts, of Bluefield, W. Va., and H. C. Alderson, of Tazewell, for plaintiff in error.

Henry, Graham & Hawthorne, of Tazewell, for defendant in error.

CARDWELL, J. On the 23d day of February, 1911, summons was issued from the clerk's office of the circuit court of Tazewell county to the Pocahontas Collieries Company, Incorporated, to appear at said office at the rules to be held for said court at the courthouse thereof on the first Monday in March, 1911, to answer in an action to recover of the defendant company damages for a personal injury, instituted by George Jennings, an infant suing "in forma pauperis" by Robert Jennings, his next friend. Said summons was duly executed on the 28th day of February, 1911, and return thereof made to the clerk's office at the first March rules, held on Monday, March 6, 1911. On the last-named date the cause was continued for the declaration to be filed, and for like purpose the cause was continued at the second March rules, 1911, and again at the first April rules, 1911. At the second April rules, held April 5, 1911, the cause was dismissed by the clerk "for failure to file the declaration within the time prescribed by law."

A declaration was filed April 6, 1911, as appears by the clerk's indorsement thereon, and there is no controversy between the parties as to the correctness of this date, or of any other of the dates above mentioned. At the May term, 1911, the plaintiff moved thecourt to correct the rules taken by the clerk in the cause, especially that taken at the second April rules, 1911, wherein the case was dismissed by the clerk pursuant to the statute, and further moved the court to enter the case on the court's docket; whereupon the defendant appeared by its counsel, for the purpose only of resisting said motions upon the grounds that the case had been properly dismissed by the clerk at the second April rules, and that the statute of limitations had barred the plaintiff's action at the time the case was dismissed, and the same was then barred. By leave of court a statement in writing was filed, setting forth the defense to and resistance of plaintiff's said motions. Thereupon the court by its order entered June 7, 1911, overruled plaintiffs motion to correct the rules, to which ruling the plaintiff excepted.

At a later day, pursuant to leave granted by the court, the plaintiff filed his petition to reinstate the case on the docket of the court, accompanied by certain affidavits, to which petition the defendant filed its demurrer, objections, and answer; and the cause coming on to be heard on the 7th day of March, 1912, upon said petition and affidavits, and the demurrer, objections, and answer of the defendant thereto, the court by its order then entered denied the prayer of the petition and dismissed the same, to which judgment the plaintiff also excepted and applied for and obtained this writ of error.

The errors assigned are to the rulings of the trial court in refusing to correct the rules taken in its clerk's office, and refusing to reinstate the case upon the docket.

The motions of plaintiff in error to correct the rules taken in the clerk's office and to reinstate the case on the court's docket were made under section 3293 of the Code of 1904, which is as follows: "The court shall have control over all proceedings in the office during the preceding vacation. it may reinstate any cause discontinued during such vacation, set aside any of the proceedings, or correct any mistake therein, and make such order concerning the same as may be just"

The action of the clerk dismissing the case at the second April rules, 1911, was taken pursuant to section 3241 of the Code, which is as follows: "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."

It is conceded that a calendar month is meant in the statute, and it is also admitted by counsel for plaintiff in error that if in the computation of the time, as set forth in section 3241 of the Code, the 6th day of March, 1911, on which the process in the case was returned, is to be included, then the 6th day of April, 1911, on which the declaration was filed, has to be excluded; and therefore the declaration was not filed within the one month.

The contention of defendant in error is that the 6th day of March, 1911, should be included as the first day on which the month began, and that the month ended with the ending of the 5th day of April, 1911. On the other hand, the plaintiff in error relies upon clause 8 of section 5 of the Code as sustaining his contention that the statute means within one month after the return of the process executed, and within one month after the 6th day of March, 1911, so that the month, in this instance, began on the morning of the 7th day of March, 3911, and ended on the morning of the 7th day of April, 1911; and therefore the declaration, having been filed on the 6th day of April, 1911, was filed within the time prescribed by the statute.

The statute as it now appears in clause 8, § 5, of the Code of 1904, is the same appearing as the eighth clause of section 17, c. 16, of the Code of 1860, which was construed in...