Lawrence v. Winifrede Coal Co

• Decision Date: 21 April 1900
• Citation: 48 W.Va. 139,35 S.E. 925
• Court: West Virginia Supreme Court
• Parties: LAWRENCE v. WINIFREDE COAL CO.

35 S.E. 925

48 W.Va. 139

LAWRENCE

v.WINIFREDE COAL CO.

Supreme Court of Appeals of West Virginia.

April 21, 1900.

LIMITATIONS—SECOND ACTION—COMMENCEMENT OP ACTION.

1. A suit begun by the issuance of a summons, and dismissed at rules for the mere failure of the plaintiff to file his declaration, will not save a second suit for the same cause of action, brought within one year after such dismissal, from the statute of limitations.

2. A suit begins with the issue of the summons to answer the declaration or bill, and there fore the statute of limitations ceases to run at the date of the issue of the summons.

(Syllabus by the Court.)

Error to circuit court, Kanawha county; F. A. Guthrie, Judge.

Action by A. C. Lawrence against the Winifrede Coal Company. Judgment for defendant, and plaintiff brings error. Affirmed.

E. W. Wilson, A. B. Littlepage, and J. F. Corke, for plaintiff in error.

Brown, Jackson & Knight, for defendant in error.

BRANNON, J. Lawrence brought an action in Kanawha county against Winifrede 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, his 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 21 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 first suit was dismissed, and that by virtue of the statute in such case made and provided the plaintiff had one year in which to sue after the dismissal of the first suit, and that the second suit had been instituted before the expiration of one year after the dismissal of the first suit. Upon demurrer to this replication, it was held bad, as not legally answering the plea of the statute of limitations, and judgment was given for the defendant, and the plaintiff sued out the writ of error now in hand.

The question is whether that replication presented a sufficient answer to the plea of the statute. Section 19, c. 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 by 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 be 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 lossor 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 statute applies to the case. I read the statute as saying tha, t 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 nonsuit for failure to file a declaration could not be pleaded in bar of another action; so that the case is within the letter of the statute. But is it within the spirit and purpose of the statute? for a statute has not merely letter, but it has actual spirit, which may take a case out of, or put it within, the statute. In this case the plaintiff was guilty of neglect, which caused the dismissal of his suit. That dismissal was solely imputable to his own action. He either intentionally abandoned his first suit, or neglected it, which operated in law to discontinue it. It is a voluntary dismissal, or call it a discontinuance, by reason of the plaintiff's nonaction. Could he, by his own act, keep alive his action, and prolong the defendant's liability? In the language of the Texas court in Shields v. Boone, 22 Tex. 193: "It would be charging the legislature with great folly to suppose that they ever intended to enact that the institution of a suit, and the voluntary abandonment of it, could secure to a party any rights." In Harris v. Dennis, 1 Serg. & R. 236, the court said that, where there was a verdict and arrest of judgment, or reversal for error, there was some presumption of a good cause of action; "but there is no presumption in favor of one who has been nonsuited, and, as it is in the plaintiff's power to suffer as many nonsuits as he pleases, he might make...