Kees v. Clark

Opinion by

Mr. Justice Potter,

This was an action of assumpsit brought by the appellants who are the executors of J ames Rees, deceased, against Lewis N. Clark, W. B. Sneathen and William T. Brenneman. The original summons was issued November 5,1891, to tbe first Monday of December, 1891, and was returned “non est inventus.” Plaintiffs’ statement of claim was filed at the same time the summons issued. On September 5, 1893, an alias summons was issued to the first Monday of October, 1893, which was also returned “ non est inventus.” On September 18,1901, a pluries summons was issued to the first Monday of October, 1901, which was duly served on all the defendants. On November 16, 1901, on petition of W. B. Sneathen, one of the defendants, a rule was granted to show cause why the writ should not be quashed and the suit discontinued, which rule, after answer and argument, was discharged. Subsequently, judgment by default was entered against the defendants, Clark and Brenneman, and the case was put at issue against Sneathen, the third defendant. On October 17, 1904, a jury was called, and on October 19, a verdict was rendered for the plaintiffs for |9,410.36, subject to the question of law reserved, “ whether under the record and the evidence in the case, there is any evidence entitling the plaintiffs to recover against W. B. Sneathen.” On February 27, 1905, judgment was entered for defendant and against plaintiffs non obstante veredicto.

The reason for entering judgment for defendant, is thus stated in the opinion of the court below: “ In the case at bar, plaintiffs allowed a period of more than eight years to intervene between the issuing of the alias and the pluries summons, and a period of almost thirteen years between it and the time that the right of action accrued. It is our opinion, therefore, that plaintiffs, having allowed a period of more than six years to pass, during which time they have made no attempt to continue the process already issued, this action must be considered as discontinued and plaintiffs out of court; the plea of the statute of limitations being a bar to their right to recover on the pluries writ.”

In reaching this conclusion the court below relied upon the reasoning and the principles set forth in the line of cases beginning with Jones v. Orum, 5 Rawle, 249, where a period of ten years intervening between the issuance of the writs, it was held that the suit was discontinued, and defendants were out of court. In McClurg v. Fryer, 15 Pa. 293, a period of a little more than four years was held to be in time to bar the statute. In Curcier’s Estate, 28 Pa. 261, the time intervening between the writs was fifteen years; and - it was held that the suit was not properly continued, and the running of the statute was not tolled. Judge Black there says that it is not safe to delay the alias for more than six years after the original writ is taken out, and he adds, “ there is no case in our own books that has allowed a suit commenced in this way to be kept alive by continuances, without an alias in less than six years.”

We think the conclusion reached by the trial judge in this case, was entirely correct.' If we have any regard to the principle upon which the statute of limitations is founded, we must hold that it is not sufficient for a plaintiff to bring his action and then remain inactive for an indefinite period. As the legislature has prescribed the term for the commencement of a suit, to bar the statute, we are of the opinion that both reason and authority require that in order to continue the action and prevent the defendant from claiming the protection of the statute, an alias writ should be issued within a like period from the date of the original summons.

It is suggested in the argument, that the reservation of the question of law, was bad, but, under the rules laid down in Casey v. Paving Co., 198 Pa. 848, the reservation is unquestionably good.

The assignment of error is overruled and the judgment is affirmed. •