Hatfield v. Swiler

28 Pa. 522 | Pa. | 1857

The opinion of the court was delivered by

Knox, J.

There is nothing in the Act of 13th June, 1836, which is inconsistent with the law in existence previous to its passage, that there should be at least ten days between the day on which a summons is issued and the day upon which it is made returnable. The thirty-first section is rather confirmatory of the old rule, than repugnant to it; for it creates additional return days to be used where there are not ten days between the issuing of the summons and the first day of the term. Had the intention been to change the rule, and allow a summons to issue within ten days of the commencement of the term, it would have been wholly unnecessary to provide the return days mentioned in this section, for the ten days allowed before judgment for want of an affidavit of defence, are computed from the service and not from the issuing .of the writ. The only object of the section appears to be to allow a summons to be issued even within ten days of the term, if the party issuing it is willing to make it returnable on the day preceding the last day of the term, or upon the first day of the next succeeding term. We are satisfied that the learned president of the Common Pleas arrived at a correct conclusion in this case, and that the summons was properly quashed because it was issued within ten days of the first day of the term, on which day it was made returnable.

To avoid misconstruction, it is proper to say, that the thirty-second section of the act referred to, places the courts of the city and county of Philadelphia, and the county of Allegheny, upon a different footing from those in the other counties of the state, and that we should not be disposed to interfere with any existing practice on this subject in Philadelphia or Pittsburgh not plainly contrary to the above-named section.

Judgment affirmed.