Manufacturers & Farmers Bank v. Mathews

3 W. Va. 26

• Court: West Virginia Supreme Court
• Decided: July 15, 1868
• Status: Published

Opinion

Brown, .President.

The plaintiff in an action of assump-sit, on leave, files an amended declaration, to which the defendant at once files his plea.

Is the plaintiff' entitled of right, if he requires it, to a rule to reply ?

If he is, then it was error in the court to refuse him a continuance and put him to a nonsuit. And for the same reason it was like error to refuse to set aside the non suit, and more especially so where, as in this case, another action for the debt would be barred by the statute of limitations, and where, without unnecessary delay on the part of the plaintiff after suit brought, and under the peculiar circumstances of the case, a continuance was necessary to enable the plaintiff to procure the proof necessary to sustain the action. The English practice was to give the party a reasonable time, (Gilman 228), but our statute, Code 1860, chap. 171, sec. 4, gives to the parties respectively a month to declare, plead, reply, rejoin, &c; and by the 5th section it is immaterial whether the case be at rules or in term.

I think, therefore, that the plaintiff had a right to time to reply and also a good ground for a continuance. Jacob vs. Sale, Gilmer, 123. And that by replying immediately he manifested no disposition to delay and did not thereby prejudice a just cause for a continuance. The court erred in-refusing the continuance asked, and also in refusing to set aside the nonsuit 'produced by the refusal to continue. The judgment, therefore, should be reversed, the nonsuit set aside, the cause reinstated and remanded to the circuit court for further proceedings to be had therein.

Judge Maxwell concurred.

Judgment reversed.