215 Pa. 235 | Pa. | 1906
Opinion by
The notes upon which this suit was brought matured in December, 1898, and January, 1894. The summons was issued March 14, 1898, and was returned n. e. i. On March 4, 1904, an alias summons was issued, to which there was the same return. On March 27, 1905, a pluries summons was issued, which was returned served. One of the contentions of the appellant is that, as this last summons was not issued and served within six years from the return day of the original process, the action is barred by the statute of limitations.
When the original summons was issued the statute had not run against the plaintiff’s claim. The institution of the suit tolled it, and the continuance of the suit continued the tolling. If the suit had been abandoned at any time after the expiration of six years from the time the cause of action arose, the statute would have become a bar. The institution of an independent second suit would have been an abandonment of this one, and if such suit had been instituted after six years had expired from the maturity of the notes, the statute would have barred a recovery in it; but no new suit was instituted and the present one was never abandoned. It was continued in the only way it could have been continued to keep on tolling the statute after the sheriff liad failed to find the defendant, and that was by issuing an alias summons. This alias was not the inception of a new suit, but a continuance of the original process, tolling the statute. “ Instead of being the inception of a fresh suit an alias or pluries is, at the common law, but a continuance of the process; and there is no reason why it should not be so here where the capias or summons is the originating writ. It was held to be strictly so in Sehlosser v. Lesher, 1 Dali. 411, where to a plea of the statute of limitations, the plaintiff successfully replied an original summons on a particular day within the six years; which he could not have done, had not the action been commenced by such original, and continued by the further process without break or interval: ” Lynn v. McMillen, 3 P. & W. 170. “ The action begins, not with the date of the prmcipe, but with the issue of the summons
When the alias summons was returned unserved, the original process was continued, but not for a longer period from the return of the alias than the cause of action would have continued if the original summons had not been issued. Before such a period had expired the plaintiff, on March 27, 1905 — a little more than a year from the date of the return to the alias — procured the pluries summons to be issued. This was but an alias writ and is called pluries simply to distinguish it from the first alias. Each was but a continuance of the original summons, which had preserved the life of plaintiff’s claim from March 14, 1898. At the expiration of six years from that date the claim would have expired, if what had continued its life had not also been continued. Before the claim did so expire it was prolonged by the continued process of the law, and when it was in existence on March 27, 1905, it was still further continued
A creditor is not bound to resort to any particular jurisdiction to sue his debtor. While he must bring his suit within the statutory period, he can sue wherever he pleases, taking, of course, the chance of finding the debtor and having him served with the process. In the present case the appellant complains that, though the plaintiff knew he had lived in Indiana county since 1895, he knew nothing of this suit until he was served with the pluries summons in Allegheny county; but the plaintiff was not required to go to Indiana county to sue for its money. It brought its suit presumably at its own residence, at any rate,
But for an utter misapprehension of what was decided in Curcier’s Estate, 28 Pa. 261, due, no doubt, to what appears in the syllabus of that case, which is repeated in Troubat & Haley’s Practice, sec. 1630, the position assumed by the appellant would hardly have been taken. All that was decided in that case was that an alias writ issued in 1851 was too late to keep alive a suit brought in 1836 — fifteen years before — in which the summons had not been served. The language of Black, C. J., is: “ The question is not whether a summons returned non est inventus is to be regarded as the commencement of the action when it is followed in a short time afterwards with an alias which is actually served; but whether the statute is tolled by a writ not executed though there be an interval of fifteen years between it and the alias. If a party can lie by in such a case for fifteen years, he may do so for an indefinite time.” The misunderstanding by the reporter of what the case decides is equaled only by what appears in Troubat & Haley’s Practice, supra, and it is well that now, after fifty years, an opportunity has been given to correct an impression that the syllabus of the case seems to have made.
The question of the appellee’s laches in prosecuting its suit is not in the case. It brought the suit within time, and on March 29, 1905, within two days from the time the pluries summons was served, the defendant was notified that the plaintiff’s statement had been filed. An affidavit of defense was filed on April 11,1905. On the 20th of that month a rule was taken for judgment, and on July 28, following, it was entered for the insufficiency of the affidavit of defense. The case is one of more than usual expedition by the plaintiff after it succeeded in getting the defendant into court.
The affidavit of defense avers that at the time the indebtedness was contracted for which the notes in suit were given, the
Judgment reversed and procedendo awarded.