Noel v. Noel

• Decision Date: 23 July 1896
• Citation: 25 S.E. 242,93 Va. 433
• Parties: NOEL. v. NOEL.
• Court: Virginia Supreme Court

93 Va. 433

25 S.E. 242

NOEL.

v.NOEL.

Supreme Court of Appeals of Virginia.

July 23, 1896.

Limitation of Actions—Proving New Promise —Commencement of Action—Process— Maturity of Debt.

1.Under Code, § 2922, providing that a new promise may be shown in evidence by a plaintiff, without pleading it, to repel the bar of the statute of limitations, pleaded by defendant, on reasonable notice to the defendant before trial, it is not error to reject such evidence where no notice has been given.

2.The provision of Code, § 3220, that process shall be issued before the rule day to which it is returnable, is mandatory, and a writ issued on the rule day to which it is returnable is void, together with all rules and proceedings based thereon; and the suing out of the writ being the commencement of the action, where a writ so issued is quashed, and a new writ ordered, and served, the commencement of the action, so far as relates to the statute of limitations, dates from the issuance of the new writ.

3.As to the time when a cause of action sued on arose, the plaintiff is bound by his own pleading and proofs, though he might at his election, on the facts shown, have treated the debt as maturing at a later date.

Error to hustings court of Radford; George E. Cassell, Judge.

Action by R. J. Noel against Thomas J. Noel.Judgment for defendant, and plaintiff brings error.Affirmed.

Phlegar & Johnson and Longley & Jordan, for plaintiff in error.

J. C. Wysor, for defendant in error.

CARDWELL, J.This is an action of assumpsit, brought by the plaintiff in error in the hustings court of the city of Radford, to recover of the defendant in error a balance of $517, as due on the price and value of certain goods sold and delivered by the plaintiff to the defendant on the 21st day of November, 1891.The memorandum of the plaintiff's attorney directing the writ to issue to the second November rules, and the declaration, were filed on the 19th of November, 1894, which was the second rule day of the court.The writ accordingly issued was executed and returned on that day.November 21, 1894, a bill of particulars was filed with the clerk.At the first December rules, 1894, the following rules were taken: "Common order confirmed, and office judgment."Upon the calling of the case, on the 13th of December, 1894, the hustings court quashed the process, because it appeared on its face to have issued on the rule day to which it was returnable, and remanded the case to rules for a new process.At the second December rules, 1894, December 17th, the following rules appear to have been taken: "Alias process returned executed.Declaration filed, and common order;" and at the first January rules, 1895: "Common order confirmed, and writ of inquiry."This so-called "alias process" does not appear in the record.February 6, 1895, another writ was issued, returnable to the second February rules, 1895, which was executed February 11, 1895, but no rules seem to have been taken on this process.At the April term, 1895, the cause was continued for the defendant to the next issue term of the court; and at the June term, 1895, the defendant filed his several pleas of non assumpsit, non assumpsit within three years and offsets, to which the plaintiff replied generally, and issues were joined.The declaration is in the common count only, and declared on the debt as due and on request, November 21, 1891, and the bill of particulars filed with the declaration made it due as of that date.The plaintiff proved the transaction out of which the debt sued on arose, and the balance due thereon; but, in the progress of the trial, the time when the debt became due was drawn in controversy by the plaintiff's testimony in relation to certain bonds that he alleged that the defendant was to have given him for two credit payments, at 12 and 18 months from the day of the sale of the goods; whereupon the defendant objected to this testimony, because the declaration alleged that the debt sued upon was due on request, and thereupon plaintiff's counsel said, in the presence of the court and jury, that "our claim is that the debt sued on became due on the 21st of November, 1891"; and the defendant then withdrew his objection to the testimony.In this connection, the plaintiff offered to introduce in evidence the following writing: "On November 21, 1891, I purchased of R. J. Noel his one-half interest in the Radford Drug Co., consisting of stock, furniture, and fixtures, on which I we him a balance, and in consideration of which I hereby agree not to plead the statute of limitations on the account that he holds against me for his interest in Radford Drug Co., this the 17th day of November, 1894.[Signed]T. J. Noel."To the introduction of this writing, the defendant objected, which objection the court sustained, on the ground that the same had not been pleaded by a special replication to the plea of the statute of limitations; and this ruling of the court constitutes plaintiff's first bill of exceptions.The plaintiff then offered in evidence the record in the case, including the memorandum on the memorandum book for process bringing the suit, the process which issued November 19, 1891, the rules taken thereon, as appeared by the rule book, and the order quashing the process and remanding the case to rules for a new process, and also offered to prove by the deputy clerk of the court that no other memorandum had been made or order given by the plaintiff or his attorney for process for the bringing of a second suit between these parties; that no writ tax had been charged or paid on such a suit; that no rules had been taken thereon, and no declaration filed therein; and that the process issued on the 6th day of February, 1895, was issued in obedience to the order of the court remanding the case, brought November 19, 1894, to rules for new process therein.But to the introduction ofthis record, and the testimony of the deputy clerk, the defendant objected, and the court sustained the objection, and this ruling of the court constitutes plaintiff's second bill of...