The times. [volume] (Washington [D.C.]) 1897-1901, 1900-10-14
FAVORS THE DEFENDANT
Justice Coles Ruling on Discon-
tinuance Of an Action.
The Question of the Right of n JUS
tice of the Peace to Issue an
"Alias" SummOns-VieyrS of OppOs-
ing COunsel-Nesligence on Part
of the Plaintiff Loses the Suit.

The decision of Justice Cole. rendered
a few days ago in the case of Terriil VS..
Lindsay, disposed of a question OF
considerable interest to the members
of the bar, justices OF the peace, and
business people who are obiigsI al times
to have recourse to justice courts. In the
case referred to the plaintiff in 1895 sued
out a summons against the defendant be-
fore a justice of the peace. The justices
constable failed to fnd the defend N and
endorsed upon the summons met un H.
The matter lay dormant for three years,
when. in 1899, the plaintiff sued out
second or alias summons. The consta-
BILE this time found the defendant and
| served the process.
The question then arose as to when the
suit was begun, whether with the issu-
ance of the first or the second summons.
1t was contended that if the suit was
commenced with the issuing of the second
summons, then more than three years
had elapsed since the plaintiffs claim
against the defendant was supposed to
have arisen in 1895. In that case the
plaintiffs right to sue would have been
4; barred by the statute of limitations. On
| the other hand, if the suit began with
| the issuing of the first summons the
| statute had been prevented from running
| ever since the issue of the first process.
1t was argued by Attorney Fl. II. Glas-
sic, for the defendant, that the suit be-
| gan, if at ALL with the issuing Of the
/ second summons. 1t was also contend cd
that justice of the peace, when "A sum-
mons issued by him is returned not
found" has not the power OF a higher
court to issue an alias or subsidiary
summons. A justice of the peace, it was
claimed, had only the power to issue
original summOnses, and if they were
not served within forty days they die or
become void. In such cases the plain
tiff, if he desires to prosecute his suit,
must begin anew.
Mr. Classic also contended that even II
the justice of the peace had the power to
issue an "alias" summons, in the case I'M
der consideration, the plaintiff had failed
to take advantage of this, and his suit
died from neglect. The rule established
by the Court of Appeals for the District
for the other courts, Mr.. Classic con-
tended, applied also to the courts of JUS
tees of the peace, and if a plaintiff let
his suit lie dormant for three years he
must suffer for his own negligence.
Attorney Henry E. Davis. who appeared
for the plaintiff, contended that justice
of the peace has a right to issue an alias"
summons, and that the doctrine of the
Court CT Appeals with respect to discon-
tinuances. in fact, was an innovation, and
should not be extended. Once a plaintiff
begins suit, Mr.. Davis claimed, he need
not follow it up. but could wait until he
is sure that he can get service upon the
plaintiff.
Justice Cole. without deciding whether
or not a Justice of the peace has the
power to issue an alias" summons, held
hot baI of
the original suit in 1895, and that the sec
ond or alias, summons began a new
suit in 1899, against which the statute Vi
limitation had run. He stated that the re-
turn of the first writ. mot found was
notice to the plaintiff, and that if he had
genuine cause of action he should have
followed it up. From the testimony the
court said it appeared that although the
defendant resided in the city and was a