Prettyman v. Irwin

Citations

• 273 Pa. 522
• 117 A. 195
• 1922 Pa. LEXIS 608

Syllabus

<p>Statute of limitations — Affidavit of defense — Preliminary question of law — Statement of claim — Laches in filing statement — Alias summons — Practice, O. P. — Appeals—Final judgment — Act of May U, 1915, P. L. 488.</p> <p>1. Whether a claim is barred by the statute of limitations cannot he raised in an affidavit of defense, under the Procedure Act of May 14, 1915, P. L. 483, so as to entitle the court to decide it on those averments as a preliminary question of law.</p> <p>2. In determining whether or not a statement of claim has been filed in time, the question is one of laches; ordinarily the claim will be treated as abandoned, by analogy to the appropriate statute of limitations, unless the statement is filed within the statutory period after the suit is begun.</p> <p>3. In such cases, however, facts and circumstances may be shown which will adequately explain the laches, and in that event the suit will not be adjudged to have been abandoned.</p> <p>4. Ordinarily an alias summons must issue within the statutory period after the original, and unless this is done the rights of the parties will be the same as if the action had not been begun within the prescribed time.</p> <p>' 5. In such cases, plaintiff cannot excuse the delay merely by showing he had not been guilty of laches; the alias writ should be quashed unless the facts and circumstances proved, would have been sufficient to toll the running of the statute in the case of an original writ.</p> <p>6. The question as to whether the claim is unenforceable, because the alias writ was not issued in time, may be preliminarily raised by a rule to show cause, founded on a petition setting forth the facts, to which an answer may be filed and depositions taken, if essential facts are disputed.</p> <p>7. If it appears on the hearing of the rule that there are no essential facts in dispute, the court should make the rule absolute or discharge it as the facts may warrant; but if there is a substantial issue of fact