192 A. 459 | Pa. | 1937
Argued April 20, 1937. The original summons in an action for wrongful death was issued on October 18, 1934, within one year *342 of the death, as required by the Act of April 26, 1855, P. L. 309. It was returnable November 26, 1934, and was returnednihil 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 estinventus, 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,
Judgment affirmed.