Gibbons v. Heiskell

Bond, J., delivered the opinion of the Court. On the 16th day of January, 1899, the plaintiff, the appellant in this Court, filed his declaration in assumpsit in the Circuit Court for Prince George’s County, Maryland, against ⁷ the appellee, as administrator of Peter H. Heiskell, deceased, to recover for materials furnished and work and labor performed, as alleged by him, for the defendant’s intestate in his lifetime, accompanied by the particulars of the demand. On the same day of the filing of the narr., as appears from the record, the defendant appeared and filed the three following pleas : 1. That his intestate never promised as alleged. 2.

That the alleged cause of action did not accrue within three years before the institution of the suit; and 3. That the defendant had fully administered tie goods of his intestate, See. On the first and third pleas plaintiff joined issue, and replied specially to the second. As the decision of the case turns upon the sufficiency of the replication, we set it out in full, which is as follows: “The cause of action, set forth in the narr. herein, first became due and payable in the month of July, 1883, and an action at law was brought thereon by the plaintiff against the said Peter H. Heiskell (now deceased), in his lifetime, on the 10th day of April, 1886, in the Supreme Court of the District of Columbia, by due personal service of its process on the said Peter in the Action No. 26844, law, whereby the said Court acquired and had full jurisdiction of the said subject-matter and of the person of the said Peter; and the said Peter thereupon appeared in said Court, and submitting to its full jurisdiction in the premises, pleads to the cause and joins issue with the plaintiff therein ; and such action at law and issues joined still remained in the said Court pending at the time of said Peter’s death.

Thereupon, subsequently, in a proceeding in said cause on behalf of the said plaintiff to have the same revived, and the said Jesse L. Heiskell, administrator of the estate of the said Peter, deceased, brought in as a party defendant, to-wit: on the 24th day of February, 1894, the said Supreme Court of the District of Columbia finally struck from its docket the said Action at Law No. 26844 and dismissed the same for want ⁸ of power in said Court to compel the foreign administrator to come into said Court in said cause; whereupon this present action was brought and begun one month and fifteen days after such termination of the former action aforesaid, and thirteen months, twenty-six days after the appointment of the said administrator in this jurisdiction to represent the estate of the said Peter.” This replication was followed by a rejoinder, to the effect that “ defendant’s intestate, at the time of the making of the alleged contract sued on in this case, and the accruing of the alleged cause of action, to-wit, August, 1882, was a citizen of the State of Maryland, residing in Prince George’s County, and continuously thereafter remained such citizen and resident to the time of his death, to-wit, in the year 1893.” To the rejoinder the plaintiff entered a demurrer, which, upon argument, was