Vencill v. Flynn Lumber Co

• Decision Date: 11 September 1923
• Docket Number: (C. C. No. 236.)
• Citation: 119 S.E. 164
• Parties: VENCILL. v. FLYNN LUMBER CO.
• Court: West Virginia Supreme Court

119 S.E. 164

VENCILL.

v.FLYNN LUMBER CO.

(C. C. No. 236.)

Supreme Court of Appeals of West Virginia.

Sept. 11, 1923.

(Syllabus by the Court.)

Certified from Circuit Court, Nicholas County.

Action by H. C. Vencill against the Flynn Lumber Company. Defendant demurred to the declaration, which was sustained, and thereupon filed a plea under the statute of limitations, which was admitted. On certified questions. Affirmed.

Emmett Horan and G. G. Duff, both of Summersville, for plaintiff.

Alderson & Breckinridge, of Richwood, for defendant.

LITZ, J. On July 27, 1922, in the circuit court of Nicholas county, the plaintiff brought an action of trespass on the case against the defendant for $70,000 damages on account of the alleged wrongful suing out by the defendant against the plaintiff of an injunction whereby the plaintiff was enjoined from cutting, manufacturing, and removing timber from 250 acres of land situate on Peters creek, Nicholas county, W. Va. The injunction, awarded February 14, 1920. was dissolved December 23, 1920.

Plaintiff's declaration contains two counts. The first count charges that the plaintiff was at the time of the awarding of said injunction the owner in fee simple of the 250 acres of land, and had previously installed a sawmill near by for the purpose of manufacturing the merchantable timber therefrom, a large quantity of which he had cut into logs for the purpose, and that, by reason of being thus restrained in the prosecution of the business of manufacturing and selling said timber (for 10 months) during the pendency of said injunction, he has suffered in deterioration of the sawmill, decay of the sawlogs, overhead expense and reduction in the prices of manufactured lumber the sum of $70,000. The second count makes similar charges, except as to the ownership of the land. In this count the plaintiff alleges that he was the owner in fee simple of two-thirds undivided of the tract of land, and had a contract in writing to purchase the other one-third from the defendant, but that the defendant had failed to convey the same to plaintiff, although he was at all times ready and willing and had offered to pay to the defendant the purchase price therefor; that, notwithstanding the purchase by plaintiff of the defendant's interest in said land, defendant instituted in the circuit court of Nicholas county, February, 1920, a suit in chancery against the plaintiff for the partition of one-third of said land to defendant, and in said suit, February 14, 1920, obtained the injunction aforesaid, enjoining and restraining plaintiff from further cutting and removing the said timber.

It is not alleged upon what ground the injunction was dissolved, nor whether there has been an adjudication in favor of the plaintiff for defendant's undivided one-third of the land under the alleged contract of purchase.

The defendant demurred to the declaration, and assigned as a ground, among others, that the alleged cause of action is barred by the statute of limitations, the action not having been brought within one year from the accrual of the right to sue. The demurrer being overruled, defendant filed a plea of the statute of limitations, averring that the alleged cause of action had been barred by the statute requiring the in-stitution of suit within one year from its accrual. The court, over plaintiff's objection, admitted the plea, and held that the right of action set forth in the declaration was governed by the one-year statute of limitations. The case is certified here, by the court's motion, upon these rulings.

Under section 12, c. 104 (Barnes' 1923) Code:

"Every personal action for which no limitation is otherwise prescribed, shall be brought within five years next after the right to bring the same shall have accrued, if it be for a matter of such nature that, in case a party die, it can be brought by or against his representative; and if it be for a matter not of such nature, shall be brought within...