160 A. 612 | Pa. | 1932
Argued January 25, 1932. On June 4, 1929, plaintiff took out a policy of insurance with defendant company insuring her against loss *3 by fire to an amount not exceeding $2,500 on her dwelling house situated in Fell Township, Lackawanna County. Her statement averred that on November 24, 1929, the dwelling was destroyed by fire, whereupon plaintiff gave notice of her loss to the insurance company, and the latter refused and continues to refuse to pay her claim under the policy. The insurance policy contained a clause providing: "No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless the claimant shall show compliance with all the requirements of this policy, nor unless commenced within twelve months next after the fire." The sole question for consideration is whether plaintiff "commenced" her suit in assumpsit within the prescribed twelve months' time.
November 8, 1930, plaintiff, by her counsel, filed a præcipe for a summons in assumpsit which was delivered to him on the same day. December 12, 1930, the summons and statement of claim were handed to the sheriff by the attorney for service which he made December 15, 1930, in due time before return day of the writ. Defendant moved to non pros the action on the ground that suit had not been commenced within the twelve months. The court granted the non pros and this appeal followed. It was the theory of defendant and the court below that plaintiff's suit cannot, in law, be said to have "commenced" until the sheriff was handed summons for service.
When considering a clause almost identical with the above, quoted in Everett v. Niagara Ins. Co.,
The judgment of non pros. is reversed and the case remitted to the court below with a procedendo.