Opinion
April 20, 1937.
May 27, 1937.
Negligence — Actions — Wrongful death — Limitation of time — Issuance of summons — Failure of service — Issuance of subsequent writ — Computation from impetration of prior writ.
Where a writ of summons in an action for wrongful death is returned nihil habet or non est inventus, in order to keep the cause of action alive, a subsequent writ must be issued within the statutory period from the impetration of the prior writ, not from the return day of such writ.
Before KEPHART, C. J., SCHAFFER, MAXEY, DREW, LINN, STERN and BARNES, JJ.
Appeal, No. 121, Jan. T., 1937, from judgment of C. P. No. 5 Phila. Co., Sept. T., 1934, No. 4345, in case of Marie Ida Mayo v. James Lees Sons Company. Judgment affirmed.
Trespass for wrongful death.
The opinion of the Supreme Court states the facts.
Rule for judgment of non pros made absolute. Rule to rescind order of non pros discharged, opinion by ALESSANDRONI, J. Plaintiff appealed.
Errors assigned were judgment of non pros and discharge of rule to rescind order making absolute the rule for judgment of non pros.
B. D. Oliensis, with him Samuel Kravitz, for appellant.
Wayland H. Elsbree, with him Algernon R. Clapp, of White Clapp, for appellee.
Argued April 20, 1937.
The original summons in an action for wrongful death was issued on October 18, 1934, within one year of the death, as required by the Act of April 26, 1855, P. L. 309. It was returnable November 26, 1934, and was returned nihil habet by the sheriff. An alias writ of summons was issued on October 21, 1935. It also was not served and a pluries writ was issued in July, 1936, and served on defendant. The court below permitted a judgment of non pros to be entered on the ground that the alias and pluries writs were invalid since the cause of action was barred by plaintiff's failure to have the alias writ issued within one year of the impetration of the original writ.
Appellant, plaintiff in the court below, urges that inasmuch as no subsequent writ can be issued before the return day of the prior writ has passed, the action should not be barred until the running of the statutory period measured from the return day and not from the issuance of the prior writ, in analogy to the rule that the statute of limitations does not begin to run until the right to bring suit accrues.
A plaintiff, to keep his cause of action alive, must act by causing a summons to issue within the statutory period, and thereafter be vigilant by taking prompt steps to obtain service; he cannot procure the writ and remain inactive indefinitely. Where a writ, which is obtained within the statutory period and delivered to the sheriff for service in due time, is returned nihil habet or non est inventus, the law considers plaintiff as having been diligent and treats his conduct as tolling the statute. Accordingly, the rule has been established by this court that he may have a subsequent writ issued within the statutory period commencing from the impetration of the unserved writ; this will keep the cause of action alive: McClurg v. Fryer Anderson, 15 Pa. 293; Bovaird Seyfang Mfg. Co. v. Ferguson, 215 Pa. 235. But if the subsequent writ is issued later than the statutory period (here one year) computed from the impetration of the prior writ, the former is ineffective and the action is barred: Rees v. Clark, 213 Pa. 617; Prettyman v. Irwin, 273 Pa. 522.
Judgment affirmed.