Webster v. Laws

• Decision Date: 28 February 1882
• Citation: 86 N.C. 178
• Court: North Carolina Supreme Court
• Parties: T. H. WEBSTER and wife v. WESLEY LAWS and wife.

86 N.C. 178

T. H. WEBSTER and wife

v.WESLEY LAWS and wife.

Supreme Court of North Carolina.

February Term, 1882.

APPEAL from an order made at Fall Term, 1881, of ALEXANDER Superior Court, by Seymour, J.

The only question in this case arises out of the ruling of of the court upon the sufficiency of the defence to the action, the material facts of which as found by the judge, a trial by jury being waived, are these:

The summons in the present action was issued by a justice of the peace on August 9th, 1879, and the cause tried on the 20th day of the month. The defence set up was the pendency of another suit, instituted before another justice for the same cause of action and between the same parties, the warrant in which was returnable on the same day when the second suit was begun, but it does not appear to have been served. On the return day, the justice who issued the first warrant was absent from the county and remained away several days. No further action was taken therein until some time afterwards, when an entry of nonsuit was made on the docket of the justice by himself.

Upon these facts the court declared, as matter of law, that the first action was depending and undetermined at the time of the issuing and serving of the summons in the second action, and gave judgment against the plaintiffs, from which they appealed.

Mr. G. N. Folk, for plaintiffs .

Mr. D. M. Furches, for defendants .

SMITH, C. J., after stating the above.

We do not concur in the ruling that, upon the facts found, the first action was pending when the second action was begun. The process not having been served was exhausted on the day fixed for its return, and the action was in law then discontinued. This has been repeatedly decided in this court. Fulbright v. Tritt, 2 Dev. & Bat., 491; Governor v. Welch, 3 Ired., 249; Hanna v. Ingram, 8 Jones, 55; Etheridge v. Woodley, 83 N. C., 11.

A discontinuance of process is different from a discontinuance of the action. “When a plaintiff leaves a chasm in the proceedings of his cause,” says Mr. Sellon, “as by not continuing the process regularly from day to day and term to term as he ought to do, the suit is discontinued and the defendant is no longer bound to attend.” 2 Sellons' Prac., 458; 3 Black. Com., 296.

But if the summons had been served we think it would not have affected the result.

The first action, then, terminated on the same day at which the second was begun, and if fractional parts of a day can be counted...