213 Pa. 617 | Pa. | 1906
Opinion by
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
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.
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. •