Webster v. . Laws
Supreme Court of North Carolina
Appeal from an order made at Pall 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.
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Appeal from an order made at Pall 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…
1Opinion of the Court
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…
2Cases cited3 opinions
- Etheridge v. . WoodleySupreme Court of North Carolina · 1880
- Woody v. . Jordan .Supreme Court of North Carolina · 1873
- Harris v. . JohnsonSupreme Court of North Carolina · 1871
3Cited by7 opinions
- Hatch v. Alamance Railway Co.Supreme Court of North Carolina · 1922
- Hatch v. . R. R.Supreme Court of North Carolina · 1922
- Young v. . YoungSupreme Court of North Carolina · 1879
- Webster v. . LawsSupreme Court of North Carolina · 1883
- Barkwell v. ChattertonWyoming Supreme Court · 1893
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