Carroll Hardwood Lumber Co. v. Stephenson

51 S.E.2d 313, 131 W. Va. 784, 1948 W. Va. LEXIS 60

• Court: West Virginia Supreme Court
• Decided: November 23, 1948
• Docket: CC 730
• Status: Published

Opinions

Riley, PRESIDENT:

This certificate involves the sufficiency of a special replication to a plea of the statute of limitations in an action of assumpsit, the Circuit Court of Kanawha County having sustained a demurrer to the replication.

By .the declaration, filed at July Rules, 1942, which embodies the common counts and a special count on a writing obligatory, the plaintiff seeks recovery in the sum of ten thousand dollars against D. H. Stephenson, as administrator of the estate of Forsythe Stephenson, deceased. In connection with the common counts it is alleged that plaintiff had, about September, 1927, instituted an action in as-sumpsit, and filed its declaration therein at October Rules, 1927, on the same cause of action against Kentucky River Hardwood Company, Samuel Stephenson and Forsythe Stephenson; that Forsythe Stephenson died in 1928; that D. H. Stephenson was shortly thereafter appointed and qualified as administrator for said decedent; that on the 28th day of July, 1932, a scire facias had been issued suggesting the death of Forsythe Stephenson, and substituting the personal representative as one of the defendants; that a plea was interposed in 1939 by decedent’s personal representative charging that upon the death of Forsythe Stephenson in 1928, the action had abated as to him, leaving plaintiff to press its claim against the remaining two defendants in the original action, and, if so advised, against the personal representative in an independent action; and further that the attempted revival by scire facias was abortive; that the circuit court on June 24, 1942, overruled a demurrer to the personal representative’s plea and dismissed the personal representative from the original action. The special count in the declaration sets up that by a written instrument, bearing date July 17, 1917, the three original defendants had acknowledged themselves to be firmly bound in a sum certain; that there is still due plaintiff from the estate of Forsythe Stephenson by force of said obligation the sum of ten thousand dollars, and recites the other facts set out in the first count.

Upon craving oyer of the summons in the present action, it appears that it was issued on June 24,1942, the date of the dismissal order referred to in the declaration.

A plea of the statute of limitations, filed September 28, 1942, was interposed on behalf of the estate of Forsythe Stephenson as a bar to the instant action; and thereupon plaintiff filed its replication, the sufficiency of which is the matter in issue on this certification. This special replication, after reciting facts concerning (1) the scire facias (1932) purporting to revive; (2) the dismissal by the court on June 24, 1942, as to the personal representative on the ground that the same was not properly revived against the estate; and (3) plaintiff’s right under Code, 55-2-18, to institute within one year of such dismissal the present action, alleges that the statute of limitations has been tolled, and the right to maintain the present action thereby has been saved to it.

To solve the questions raised on the certificate we must determine under our decisions and statutes' whether the first action of assumpsit, the declaration having been filed in 1927, together with the scire facias issued therein in 1932, suggesting the death of Forsythe Stephenson and substituting the personal representative as one of the defendants, constituted an “action pending”, which, in conjunction with Code, 55-2-18, was sufficient, after an involuntary dismissal in 1942, to toll the statute of limitations, and permit the institution, within the year, of a new action against the personal representative. If the scire facias did constitute an “action pending” the present action against the personal representative was brought in time, otherwise not.

In approaching the problem stated in the last preceding paragraph we are met at the outset with the matter of abatement. On this the parties differ materially. The plaintiff has proceeded on the theory that there could be no abatement until death had been suggested and an order of court entered. Defendant on the other hand insists that the action abated as of the date of Forsythe Stephenson’s death, and failure of plaintiff to institute a separate suit against the personal representative within one year following the death, all subsequent proceedings were void, citing Means v. Barnes, 72 W. Va. 512, 78 S. E. 665, and Henning v. Farnsworth, 41 W. Va. 548, 23 S. E. 663.

Prior to January 1, 1931, the date our Revised Code (1931) took effect, a plaintiff, within one year after the abatement of a suit as to one of several defendants by reason of death, could proceed against the personal representative of decedent by separate action. Richardson’s Ex’rs. v. Jones, 12 Gratt. 52, 58; Henning v. Farnsworth, supra; Means v. Barnes, supra. However, in King v. Burdette, 28 W. Va. 601, in the absence of a suggestion of death, it was held that the original action might proceed to judgment against all. In the King case the Court held the judgment good, except as to the deceased man, and as to him merely voidable, not void. This Court there recognized the general principle of law that an action does not abate ipso facto by the death of a party; that there must be a suggestion to effect an abatement; and, if the death is put in issue, it must be properly proved and declared by order. This rule is generally recognized. 1 C. J. pp. 172, 173.

The death of Forsythe Stephenson was not suggested or established on the record until July 27, 1932. At that time the plaintiff, acting under Code, 55-8-8 (a new provision inserted by the Revisers), suggested the death of Forsythe Stephenson, and asked that the claim as to the latter be revived in the name of the personal representative, and further that a scire facias reviving the action do issue. The writ was issued the same day, returnable at August, 1932, Rules.

The statute relating to “Joinder in Same Action of Survivors and Personal Representatives of Decedents” (Code, 55-8-8), under which plaintiff proceeded, provides in part:

“In every action or motion in which a decedent, if living, could be joined as defendant with another or others under section seven of this article, his personal representative may be joined with him or them, or with the personal representative of any one or more of them. * * * But nothing in this section shall prevent a plaintiff, at his election, from proceeding separately against the representative of any decedent.”

The foregoing statute does not affect the right of plaintiff to proceed by timely action against the personal rep-representative. It does, however, permit the joinder of a personal representative with surviving defendants in the original action. When a new statute deals with procedure only, prima facie, it applies to all actions — those which have accrued or are pending and future actions. Tacket v. Ott, 108 W. Va. 402, 151 S. E. 310. See also Bankhead v. Baughman, 115 W. Va. 438, 176 S. E. 854; and Pickens v. Knisley, 29 W. Va. 1, 11 S. E. 932. This statute being procedural was applicable to the original action. Plaintiff had the right, therefore, to substitute the personal representative for the decedent at the time of the issuance of the scire facias.

By order of June 24, 1942, the circuit court dismissed the first action in so far as “Forsythe Stephenson and/or the Estate of Forsythe Stephenson and/or D. H. Stephenson, Administrator of Estate of Forsythe Stephenson” were concerned. Assuming that the court was right in its ruling that the scire facias was void, yet it was sufficient to keep the first action alive under the holding of this Court in point 2, syllabus, Ketterman v. Dry Fork Railroad Co., 48 W. Va. 606, 37 S. E. 683. And in McClung v. Tieche, etc., 126 W. Va. 575, 578, 29 S. E. 2d 250, 252, the Ketterman case is cited as authority for the proposition that: “An action purportedly commenced by the issuance of a void summons which is subsequently dismissed for that reason is an involuntary dismissal and the right of action is preserved.”

We are of opinion that the scire facias, whether proper or not, kept the first action alive until the dismissal of June 24, 1942. The present action was instituted against the personal representative within the year following said dismissal, under Code, 55-2-18, thereby tolling the statute of limitations. Where the dismissal, as here is due to an erroneous ruling of a trial court, the cause of action is saved for one year after the dismissal under the provision of the foregoing statute. This statute was “designed to remedy the harsh effect of the statute of limitations and to save a cause of action which is otherwise barred.” Mc-Clung v. Tieche, supra, 577.

We are of opinion that the special replication sets up a good defense to the plea of the statute of limitations, and that the demurrer should have been overruled.

Ruling reversed.