Everett v. Niagara Ins.

Opinion, Mr. Justice Mitchell : The only question raised by the assignments of error is the correctness of the judgment entered for plaintiff on the verdict, instead of being entered for defendant, on the reserved point. The point was imperfectly reserved, as the vital fact was omitted, to wit, the limitation in the policy as to the time of bringing suit. But, as this omission was manifestly a mere-oversight, and both parties as well as the court have treated that fact as established in the case, we proceed to consider it. The policy stipulated that no action upon it should be sustained unless commenced within twelve months next after the fire should have occurred. Such contracts are valid: Hocking; v. Insurance Co., 130 Pa. 170, and will be enforced even in case of accidental failure to comply, through mistake in the policy, or in a previous suit: Farmers Ins. Co. v. Barr, 94 Pa. 345; National Ins. Co. v. Brown, 128 Pa. 386; Hocking v. Insurance Co., supra. The present case, therefore, depends’ upon two questions: First, whether this is an alias based upon [330] and supported by the prior writ; and, secondly, if so, whether the contract limitation applies to the period between the issue of the original and the alias. The present writ is an alias summons in form, and was duly issued as such; but calling it an alias will not make it one in effect, if in fact the original was dead at the time this issued. The service of the original was set aside, but the writ itself remained, and beyond question kept the action alive, at least until the entry of the nonsuit. Appellant argues, however, that, as the nonsuit was on the record when the alias issued, even though it was subsequently struck off, the original writ was functus officio for all purposes at that time, and the status of the so-called alias must be determined as of that date. This argument would be of great force if the nonsuit had been taken off by the court for any ground subsequently arising, though even then, as there were no third parties whose interests would be affected, the court might probably have ordered it struck off nunc pro tunc as of the date of its entry. But the court struck off the nonsuit, because it was entered without authority and therefore never was of any force. The special ground assigned in the opinion of the learned judge below is that, the service having been set aside, and the defendant having appeared de bene esse only, he was not in court, and had no standing to take any such step in the cause. The entry of the nonsuit was therefore no more than any unauthorized entry on the record by a stranger. This view of the extent of an appearance de bene esse is sustained by the general understanding and practice of the profession, and by the authorities as far as they appear to have passed upon the subject: Blair v. Weaver, 11 S. & R. 84; Winrow v. Raymond, 4 Pa. 501; Skidmore v. Bradford, 4 Pa. 296, 300 ; Bolard v. Mason, 66 Pa. 138. But there is also another view which leads to the same result. The rule of the court below under which the nonsuit was entered, while not expressly so limited, appears to contemplate cases where the defendant is within the jurisdiction of the court, either by service or by general appearance. Otherwise, as the court is without power to proceed in the case, there would appear to be no occasion for compelling the plaintiff to go through the useless form of filing a declaration. This appears to be the natural construction of the rule, and that such was [331] the view of the learned judge below who entered the final judgment we may fairly infer from his citation of Ashton v. Bell, 19 W. N. 38, where a similar rule was so construed by the Court of Common Pleas No. 3 of Philadelphia. On both grounds, therefore, we are of opinion that the court below was right in treating the nonsuit, thus entered without authority under the rule of court, as of no effect, thus leaving the present writ as an alias in fact as well as in name. This brings us to the second contention of appellant, that, even as an alias, this writ was too late, being issued more than twelve months after the original; and, as the parties had by their contract fixed their own period of limitation, it should be applied to the alias as well as to the original. This, however, is too stringent a construction of the agreement against the plaintiff. Such agreements are lawful, as already said, but they are in derogation of the general law of the commonwealth, and to be available the stipulation should be clear. Here, it is that the action “shall be commenced within twelve months.” There is no provision for anything beyond the commencement. Thereafter it is to take the regular course, according to the general law. The present plaintiff has brought himself strictly within his agreement. He began his action within the time specially agreed, and he kept it alive by the means and within the time allowed him by the law. It was no fault of his that the first writ was ineffectual to bring the defendant into court, but his misfortune did not go beyond the failure of the service. If that were sufficient to end his action, then the defendant, by avoiding service for twelve months, could defeat him altogether. It is not reasonable to suppose that the agreement contemplated any such result. The cases of Hocking v. Insurance Co., 130 Pa. 170, and Riddlesbarger v. Insurance Co., 7 Wall. 386, are widely distinguishable. In them the first action had come to an absolute end, and that which the plaintiffs had commenced, after the stipulated period had expired, was a new and distinct action. It was said in the former that it was a hard case for the plaintiff, but he was clearly within the prohibition of his contract. Here' the plaintiff is clearly not within the prohibition, but has preserved all of his rights. Judgment affirmed.