Everett v. Niagara Ins.

Citations

• 142 Pa. 322
• 21 A. 817
• 1891 Pa. LEXIS 739

Syllabus

<p>[To be reported.]</p> <p>1. After the return of service of a summons has been set aside, on motion of the defendant appearing de bene esse for that purpose, the defendant is out of court, and, while declining to appear generally, has no standing to direct the entry of an office judgment against the plaintiff, for non-compliance with a rule of court.</p> <p>(a) A rule of the court below provided: “If no declaration or statement is filed within one year from the first day of the term to which an action is brought, a judgment of non-pros may be entered by the prothonotary, as a matter of course, on the request of defendant’s attorney, or any officer to whom costs are due: ”</p> <p>2. The rule seems to contemplate cases where the defendant is in court, either by service or by general appearance; wherefore, the court below, so construing it, properly treated an office judgment of nonsuit entered on the request of a defendant who was not so in court, as of no effect, because unauthorized thereby.</p> <p>3. The fact that a judgment of non-pros, entered by the prothonotary without authority and subsequently stricken off by the court for that reason, was standing upon the record at the time of the issue of an alias summons, will not prevent that writ from being an alias summons in effect as well as in form.*</p> <p>4. A stipulation in a policy of fire insurance that no action shall be sustainable thereon, unless commenced within twelve months after the fire, is valid and will be enforced, even in case of an accidental failure to comply with it; but, being in derogation of the general law, to be available the stipulation should be clear.</p> <p>5. A stipulation prescribing a period within which the action “ shall be commenced,” will not be construed as requiring that an alias summons must be issued within a-like period after the date of the original summons : I-Iocking v. Insurance Co., 130 Pa. 170; Riddlesbarger v. Insurance Co., 7 Wall. 386, distinguished.</p>