Ryan v. Piney Coal & Coke Co.
| Decision Date | 07 November 1911 |
| Citation | 73 S.E. 330,69 W.Va. 692 |
| Parties | RYAN v. PINEY COAL & COKE CO. |
| Court | West Virginia Supreme Court |
Submitted September 9, 1910.
Rehearing Denied Jan. 12, 1912.
Syllabus by the Court.
One whose action, commenced within the time allowed by law, has been erroneously dismissed on a plea in abatement for variance between the writ and the declaration, after refusal to permit an amendment of the writ, may bring a new action having the same purpose as the one dismissed, within a year after the date of dismissal, though after his right of action would have been barred by limitation, had the dismissed action not been instituted.
Error to Circuit Court, Raleigh County.
Action by C. C. Ryan against the Piney Coal & Coke Company. Judgment for defendant, and plaintiff brings error. Reversed and remanded.
T. N Read and A. A. Lilly, for plaintiff in error.
Watts Davis & Davis, for defendant in error.
For a variance between the writ and declaration the plaintiff's action for damages for a personal injury was dismissed, the court having refused leave to amend the writ, which was in assumpsit, so as to make it correspond with the declaration which was in trespass on the case.
Soon after the dismissal, but more than a year after the date of the injury, the plaintiff instituted a new action in trespass on the case. In the declaration, he averred the dismissal of his first action and the cause thereof, and relies upon section 19 of chapter 104 (section 3512) of the Code of 1906, allowing an additional one year in which to bring a new action in case of dismissal of one commenced within due time on a ground which does not preclude a new action for the same cause, or by reason of any other cause, which could not be pleaded in bar of an action. To this new action, the defendant interposed another plea, founded upon the dismissal and denying the application of the statute relied upon as excepting the case from the application of the general statute of limitations. It also plead the statute of limitations. To the plea of the statute or limitations, there was a replication. Having overruled an objection to the plea designated as plea No. 2, the court determined the issue on said plea in favor of the defendant and dismissed said second action.
The construction of the statute involved has been fairly well settled in Lawrence v. Coal Co., 48 W.Va. 139, 35 S.E. 925, denying the benefit thereof to a party who has taken a voluntary nonsuit or the equivalent thereof Ketterman v. Railroad Co., 48 W.Va. 606, 37 S.E. 683, allowing it in a case of dismissal for a fatal defect in the summons, and Tompkins v. Life Ins. Co., 53 W.Va. 479, 44 S.E. 439, 62 L. R. A. 489, 97 Am. St. Rep. 1006, granting it to a party whose action, commenced in the wrong court, had been dismissed for want of jurisdiction. In the first and last of these three cases, several decisions of other courts,...
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