Neel v. Robertson

Leach, P. J., The sole reason averred for dismissing proceedings is the statement that the summons was issued June 2, 1944, and returned by the sheriff of the said county non est inventus. In answer thereto, plaintiff admits the above fact but states in the argument and in brief of counsel that plaintiff is entitled to issue an alias summons any time within five years and to continue the case to toll the statute of limitations. The authority for this statement is McClurg v. Fryer & Anderson, 15 Pa. 293; Mayo v. James Lees & Sons Company, 326 Pa. 341, and other cases. It appears, therefore, that defendant is not in court but plaintiff still has the right to bring him in by an alias summons. And now, August 24, 1945, rule to dismiss case under the Act of March 5, 1925, P. L. 23, is dismissed without prejudice to defendant’s right to move to dismiss the case for lack of prosecution if alias summons is not issued promptly.