Neel v. McElhenny

42 A. 44, 189 Pa. 489, 1899 Pa. LEXIS 675

• Court: Supreme Court of Pennsylvania
• Decided: January 3, 1899
• Docket: Appeal, No. 56
• Status: Published

Opinion

Per Curiam,

In Waring Bros. v. Penna. R. Co., 176 Pa. 172, we reviewed at some length the question of entering a judgment of non pros, on account of the long delay of a plaintiff in pursuing his action after writ issued. In that case the delay was fifteen years and we held that the excuses offered were not sufficient, and sustained the non pros. In the present case the judgment of reversal by this Court was entered on October 16, 1871. It was then the duty of the plaintiffs to take out a remittitur and bring back the record to the common pleas and proceed in due course with the trial. But nothing of the kind was done. No remittitur was taken out by the plaintiffs and nothing more was done until on June 24,1896, when the defendant obtained a remittitur, brought back the record and had the cause set down for trial. The defendant then moved for a non pros, which was ordered. Some excuse was offered that the papers could not be found, but as the court below well says, the excuse was entirely insufficient, as the loss of papers could have been easily supplied. The learned court also well says in the opinion on the motion for a non pros.: “ Since the decision of the Supreme Court defendants or their heirs or vendees have been in possession twenty-six years. Several parties have died and several conveyances have been made in the mean time. None of these parties have been made parties to the suit. To go on with this suit, brought in 1866, and after a delay of twenty-five years after the decision of the Supreme Court, would be a great injustice to them.” We also are clearly of opinion that this very long delay in the prosecution of the plaintiff’s action was a just cause of non pros.

Judgment affirmed.