Pettigrew v. . McCoin

CLARK, C. J., dissenting. This is an appeal from the refusal of a motion to dismiss the present action, upon the ground of the pendency of another action in Vance County, heard upon the following facts: "The defendant in this action caused a summons to be issued against the plaintiff here from the Superior Court of Vance County, on 5 March, 1913, entitled R. S. McCoin v. W. J. Pettigrew and the American Bonding Company of Baltimore, Maryland, which was immediately sent by mail to the sheriff of Durham County for service. It was in the office in Durham on the morning of 6 March, but the (473) sheriff was out of town and only received it on the morning of the 7th; but was unable to find the defendant, who was out of town, until the night of 8 March, when the summons was duly served, about the hour of 9 p. m. "The summons in this action was issued on 7 March, 1913, from the Durham Superior Court, and sent by special messenger to Henderson, Vance County, on 8 March, 1913, when it was delivered to the sheriff of Vance County and served upon the defendant in this action early in the afternoon of that day, between the hours of 1 and 2 p. m., before the service of the Vance County summons upon the defendant in that case in Durham. *Page 420 "Both actions are upon the same cause in courts of this State and between the same parties, with the addition in the Vance action of the surety upon the bond of the said Pettigrew for the performance of the contract set out in the complaint. Both actions are still pending and undecided. "Upon the foregoing facts his Honor was of the opinion, and held, that the Superior Court of Durham was entitled to entertain and proceed with the action begun on 7 March, and denied defendant's motion to abate and dismiss this action," and . . . "the defendants excepted and appealed." The question presented by this appeal is whether an action is pending from the issuing of the summons or from its service. There is a diversity, but not necessarily a conflict, of opinion on the point, due to the fact that it is held in some States that the action is commenced when the complaint is filed, in others when the process is issued, and in others when the process is served (1 A. and E. Pl. and Pr., 119), and this apparent conflict in the decisions as to the time of the commencement of the action seems to have originated in the difference in the rule at law and in equity, before the Code practice was adopted. (474) "At common law the suit was considered as pending from the issuance of the writ; in equity the writ was issued after bill filed, and the suit regarded as commenced from the time of the service of the writ." Handlon v. Handlon, 37 W. Va. 491. The authorities seem, however, to agree that the action is pending from the time of its commencement (1 A. and E. Enc. Pl. and Pr.), and our statute (Rev., sec. 359) declares in express terms that "An action is commenced as to each defendant when the summons is issued against him." Pending is defined in Black's Law Dictionary as "begun, but not yet completed; unsettled; undetermined. Thus an action or suit is said to be pending from its inception until the rendition of final judgment"; and as our statute fixes the inception of the action at the time of lawfully issuing the summons, we are of opinion it is thereafter pending. The action has been commenced and is undetermined, and if not pending, the inquiry may well be made, Where is it, and what has become of it? It is because of the pendency of the action that the courts issue restraining orders, appoint receivers, issue warrants of attachment, and do other things before the service of summons. *Page 421 We have found only two authorities in our State bearing directly on the case under consideration: Simmons v. Simmons, 62 N.C. 65, decided before the adoption of the Code of Civil Procedure, of which Rev., sec. 359, is a part, in which it is said: "It seems, therefore, to be settled that a suit is not pending until the return, or at least until service of process," and Webster v. Laws, 86 N.C. 179, decided after the adoption of the Code. In the last case the summons was issued by a justice on 9 August, 1879, and the cause tried on 20 August, 1879. The defense relied on was the pendency of another action, in which the summons had been issued before 9 August and was returnable on that day, but which had not been served. The judge in the Superior Court held that the first action was pending, and this ruling was reversed on appeal, the Court saying: "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 (475) not having been served, was exhausted on the day fixed for its return, and the action was in law then discontinued. If the action was discontinued on the return day, and not until that time, it would seem to follow that it was pending from the time of issuing the summons until the return day, although the summons had not been served. We are therefore of opinion that the action in Vance County was pending at the time of the institution of the action in Durham, and so hold. Reversed.