Edwards v. Western Maryland Ry. Co.

Citations

• 268 Pa. 228
• 111 A. 250
• 1920 Pa. LEXIS 658

Syllabus

<p>Practice, O. P. — Laches — Delay in prosecuting case — Filing statement — Entry of non pros. — Abuse of discretion.</p> <p>1. The question of laches does not depend, as does the statute of limitations, upon the fact that a certain definite time has elapsed since the cause of action accrued, but -whether, under the circumstances of the particular case, plaintiff is chargeable with want of due diligence in failing to institute or prosecute his proceeding.</p> <p>2. A judgment of non pros, for laches in prosecuting an action is erroneously entered, where the record shows plaintiff was injured in the service of defendant, a railroad company, on December 17, 1914; on August 18, 1915, he brought an action against the company in Allegheny County; on December 15, 1916, two days before the statute barred his recovery, he brought a second suit, this time in York County; on January 29, 1918, the action in Allegheny County was dismissed; on December 20, 1918, plaintiff filed his statement of claim in the York County suit, and thereafter the judgment of non pros, was entered on question of law raised by affidavit of defense, because of alleged laches of plaintiff in delaying to file his statement of claim.</p> <p>3. In such case, there was no reason why plaintiff should have speeded the trial of his action in York County, for the motion to dismiss the suit in Allegheny County might have been overruled.</p> <p>4. It seems that it is the proper practice, where plaintiff delays to file his statement, to take a rule on him to show cause why judgment should not be entered. On such rule, plaintiff has an opportunity, in his answer, to explain tho cause of his delay, and to show fully why a severe penalty should not be imposed upon him.</p>