267 Pa. 136 | Pa. | 1920
Lead Opinion
Opinion by
This appeal is from a judgment of the Superior Court-reversing a judgment of the Common Pleas Court of Lackawanna County, given in affirmance of a judgment entered before a justice of the peace in said county. The proceeding before the justice was begun by a landlord to dispossess a tenant at the expiration of the tenant’s term, and judgment was there recovered, in default of appearance by the defendant, for possession of the premises and the amount of rent claimed to be due. By writ of certiorari the record of the justice was removed to the court of common pleas, and, on the hearing there, attempt was made to assail the judgment rendered by the justice on the ground that in point of fact, though the record return showed otherwise, the process had been served on the defendant not within the limits of Lackawanna County, but outside. It would be true, of course, that, except as the process had been served on the defendant within the limits of the county in which the justice exercised his office, the proceeding would be nugatory and the justice without jurisdiction of the case. Act of July 9, 1901, P. L. 614, section 15. But how was the court to be informed with respect to the truth of this disputed fact? The learned judge of the common pleas in sustaining the judgment and dismissing the certiorari, held to the view that inasmuch as the justice’s record recited a proper and legal service of process on the defendant, within the County of Lackawanna, it was not competent to prove by parol testimony anything to the contrary; that the record returned in compliance with the writ, showing on its face proper and legal service of process on the defendant within the county of Lackawanna, was not open to contradiction, but must be taken as verity and conclusive of the fact.
On appeal to the Superior Court a different result was obtained, and it was there held that, while it is true the record of a court of general jurisdiction is not open to contradiction by parol evidence, such rule is limited and
We cannot concur in the view expressed in the above extract. To say that a justice’s court is not a court of record, and that the return of a constable to said court is not, technically speaking, a record at all, at least such a record as imports verity, as is the case with the record or court roll of a court of record, and therefore not entitled to immunity from attack by parol evidence, is to run counter to many decisions of this court. Our first reference must be to the case of Coffman v. Hampton, 2 W. & S. 377, which is an express adjudication of this very question. That was an appeal from a judgment obtained before a justice of the peace. On the trial
In Hazelett v. Ford, 10 W. 101, Chief Justice Gibson, speaking of the judicial character of a justice of the peace, uses this language: “He is the judge of a court which, deriving its jurisdiction from statutory grant, proceeds in most things according to the substance contained in the forms of common law, and whose docket, as to things adjudged before him, has the conclusiveness of a record.” In Clark v. McComman, 7 W. & S. 469, the action was on a recognizance which originated before a justice of the peace. On the trial it was attempted to be shown that the recognizance had been illegally taken by the justice. The court overruled the offer of evidence, and on appeal to this court the rejection of the offer was the subject of error assigned. In an opinion affirming the common pleas’ judgment Mr. Justice Rogers says: “Mistake or fraud in making up a record can neither be averred nor proved by parol evidence in a
*142 “If the authorities above cited are to be viewed as a correct exposition of the law, it would seem that the proceedings of the justice, as to their conclusiveness, are placed on the same platform as the adjudications of a common law court; and it would be difficult to assign a reason for any distinction between them. The rule is founded in convenience, and is as applicable to one tribunal as another.” If difficult at that day to assign a reason for making such distinctions between the records of the higher tribunal and that of a justice of the peace, how much more difficult it would be at this later day when the jurisdiction of the justice has been so enlarged that a justice’s court now has civil jurisdiction concurrent with the common pleas in some cases, while exclusive in others. It is unnecessary to add further authorities on this branch of the case than those cited since they are to our mind conclusive, and we are therefore constrained to sustain the first assignment of error.
Following the above extract from the opinion of the court which forms the basis of the first assignment of error, this occurs in the opinion, forming the basis of the second assignment: “We are of opinion that the return, of a constable does not possess the conclusiveness of a sheriff’s return, and that, although regular on its face, it may, on certiorari from the common pleas, be shown by depositions to have been irregular and invalid. The attack in such cases is not collateral but direct: Diehl v. Stetler, 6 Lanc. L. R. 324, and is in line with the settled law of this State, permitting want of jurisdiction of the justice, and fraud, corruption, or partiality on Ms part to be shown in such manner.” Nor can we concur in this statement of the law. As stated it is contrary to the settled rules of practice, and mistakes the one purpose of the writ of certiorari to which it has always been confined. A writ of certiorari brings up for review nothing but the record, and the court to which it is returned has jurisdiction to correct only such irregularities, if any, as appear on the face of the record. In
For the reason stated we sustain the second assignment of error.
The judgment of the Superior Court reversing the judgment of the Court of Common Pleas of Lackawanna County is reversed, and the judgment of the Court of Common Pleas of Lackawanna County is affirmed.
Concurrence Opinion
Concurring Opinion by
I concur in the judgment in this case for the additional reason that the matter is controlled by section 16 of the Act of July 9, 1901, P. L. 614, which provides that “Writs issued by a magistrate, justice of the peace or alderman shall be served in the county wherein they are issued, by the constable or other officer to whom given for service, in the same manner and with like effect as
It is conceded that a service made by the sheriff in the “manner” provided by this act is conclusive on the parties and cannot be contradicted where the return is full and explicit, and also that the return in the present case is full and explicit and would be unassailable if it had been made by a sheriff. The Superior Court’s reason for not applying here the rule, which it admits would apply were this a sheriff’s return (71 Pa. Superior Ct. 527), is because the act “contains nothing as to the effect of the return of a constable.” Neither does it contain anything as to the effect of a return of a sheriff. In either case the “effect of a return” is merely to record what the service was, and if its effect when made by a sheriff under this very act (Park Bros. & Co., Limited, v. Oil City Boiler Works, 204 Pa. 453) is to render it immune from attack, as concededly it does, then a “like effect” must be given to this admittedly full and explicit return by a constable. It is the service and not the return which brings a defendant into court; and the purpose and effect of the service is to require him to answer the exigency of the writ “with like effect” in one case as in the other. These words" are practically eliminated by the conclusion of the Superior Court, for the words “in the same manner” fully cover the “manner” of service, and the only purpose of the return is to record a fact which shall thereafter prevent a defendant from successfully alleging he was not notified of the suit, and thereby establish the res adjudicata which arises from
In Roberts v. Donnell, 31 N. Y. 446, by statute, an appeal from the judgment of a single justice of the marine court was allowed to the general term thereof, “in the same manner and with the like effect as appeals in the Supreme Court.” It. was held: “The ‘manner’ relates to the mode of proceeding.....the ‘effect’ relates to the consequences produced by the appeal----‘effect’ is an appropriate word to describe a result that follows, after the thing previously spoken of [the appeal] is completed.” In Moench v. Young, 9 N. Y. Supp. 637, the words, “with like effect,” appearing in a similar statute were held to mean “ ‘with like results,’ and this includes any disposition in the one case which the appellate court could make in the other.” No other cases have been found in which these words are used, but the dictionaries give the same meaning thereto, and no other meaning seems possible.
Moreover a consideration of other sections of the Act of 1901 compels the same conclusion. The words “with like effect” do' not appear elsewhere therein, but “with the same effect,” — which are in, all respects similar,— repeatedly appear. In section 6, clause (b), it is said that if a capias ad respondendum is issued and the defendant cannot legally be arrested, but is served with process, “the cause shall proceed with the same effect as if a summons in trespass had been duly served”; and again, if an alias writ is issued, “the defendant may be arrested by virtue thereof, with the same effect as if arrested on the original writ.” In section 9, clause (b), it is said that if when serving a writ of replevin the goods cannot be found the writ shall be served “as in the case of a summons, in which event the cause shall proceed
Dissenting Opinion
Dissenting Opinion by
In the judgment of the majority of this court the opinion of the Superior Court is “lucidly expressed.” I would add that it most clearly demonstrates the error committed by the common pleas. The judgment of the Superior Court is reversed, because the majority of this court are of opinion that it runs “counter to our decisions,” and three cases are cited and the opinions in them quoted at length as authorities calling for a reversal. Not one of them can be so regarded, and I say this with all due respect to those of my colleagues who think otherwise. In Coffman v. Hampton, all that was de
If there had been service by the constable within Lackawanna County it would have had the same effect as service of process by a sheriff. But there was no service, and it seems to me that the concurring opinion begs the question in speaking of the effect of a service of a writ by a constable. The Act of 1901 says nothing of the effect of a return. The effect of a sheriff’s return is not statutory. It is conclusive because it becomes part of the records of a court of record, which “are of such high and super-eminent authority that their truth is not to be called in question. For it is a settled rule and maxim that nothing shall be averred against a record, nor shall any plea, or even proof, be admitted to the contrary”: 3 Blackstone 24. By the judgment entered by the majority of my brethren, a magistrate’s court is now given the dignity of a court of record, though it never before has had such distinction. It is classed in the courts not of record by section 10 of the judiciary article of our Constitution.
For the reasons stated I would affirm the judgment of the Superior Court.