
    Pleasant M. Armstrong v. Henry Harrison.
    1. Action. Discontinuance of. If a party permit a chasm in the proceedings to occur, by failing to continue the process regularly from term to term, until service on the defendant, it operates as a discontinuance of his suit.
    2. Practice. Motion to enter a discontinuance. The process forms a part of the record of the cause; and, therefore, a motion is the proper form of proceeding to present the question of discontinuance.
    PROM OVERTON.
    This cause came before the Court, Gardenhire, J., presiding, at the September Term, 1858, upon a motion to dismiss the suit. The Court sustained the motion, and the plaintiff appealed.
    
      Swope, for the plaintiff,
    said:
    This action of debt was commenced in the Circuit Court of Overton, on the - of December, 1857. The writ of summons not being served, the plaintiff failed to take out an alias at the February Term; but at the June Term an alias was awarded on the record, and it was afterwards issued and served on the defendant. At the return of this alias, at the September Term, the defendant appeared, after the filing of the declaration, and moved the Court to discontinue the suit; which motion was sustained, and the action dismissed with costs, to which plaintiff excepted.
    We think the Court erred in its action. It is true, that, according to the rigorous practice of the common law in England in early times, this ' course would be right; but we think that rigor somewhat abated in our practice. There, a day was set for the defendant to appear in Court, and if the plaintiff did not appear and take out an alias, it was held that there was a chasm or breach in the proceedings which totally discontinued the suit. It is difficult to discover any solid reason for this great strictness, and it seems rather fictitious and formal than real; and it is believed that the same rigidity will not now be required. No case is now remembered, decided by this Court, precisely in point. The case of Slatton v. Johnson, 4 Hayw. Rep., is relied on by defendant. That was a case upon the power and practice of the County Court upon attachment. A discontinuance. cannot take place during the placitum, nor after declaration filed, nor after the appearance of defendant. Bouveir’s Law Die. Titles Discontinuance ; Continuance; Practice.
    
      Here the party was duly summoned • on the alias .writ, and, after the filing of the declaration, appeared in Court, which, we think, cures the defect, if it be one.
    One of our own cases, not now at hand, holds that after the issue' is made up, though the case lies seven years without any steps, there is no discontinuance.
    JONES & McHeNRY, for the defendant,
    argued that—
    The only question in the cause is, was the suit properly dismissed ? It appears from the record that the original writ was sued out on the 23d day of December, 1857. It also appears that there was no order for an alias at the February Term, 1858, of said Court; nor was there an alias writ issued returnable to the June Term, 1858, of said Court.
    It is a rule of law, that if the plaintiff ■ suffer a term to elapse or pass without suing out an alias writ, his suit can be discontinued by motion. See Tidd’s Practice, vol. 1st, &de page 626.; Caruther’s Law Suit, page 15; 5th Hay.; 2d Bl. Com. page 96.
   McKinney, J.,.

delivered the opinion of the Court.

This was an action of debt. The defendant was brought in by the service of an alias summons. At the return term the defendant appeared, and moved the Court to enter a discontinuance of the plaintiff Is action on the ground of a chasm in the proceedings, by failing to continue the process regularly from term to term, until service on the defendant. The Court sustained the motion, and ordered the suit to be dismissed. And in this, it is alleged, there is error.

It appears from the record, that the original summons issued on the 23d of December, 1857, returnable to the February Term, 1858, of the Circuit Court cf Overton, and was returned to said term, “not found.” At the June Term, 1858, an alias summons was, by order of the Court, awarded; which was issued, and returned executed to the September Term, 1858.

It is clear that the neglect of the plaintiff to continue the process from the February; to the June Term of the Court, was a discontinuance. The fact that the alias summons was awarded by an express order of the Court avails the plaintiff nothing. The discontinuance was complete before this order was made; therefore the Court had no power to make such order, and it must be treated as a mere nullity.

Under our practice, no exception can be taken to the mode by which the question of discontinuance was raised and disposed of. By express legislative enactment, the “process” forms part of the record of the cause. And this being so, a motion was the proper form of proceeding to present the question of discontinuance. It was not necessary, nor would it have been a proper practice, to present, by plea, a matter which fully and distinctly appeared to the Court from the face of the record. See 7 Hum., 66.

There is no error in the judgment, and it will be affirmed.  