71 Pa. Super. 527 | Pa. Super. Ct. | 1919
Opinion by
The sole question raised by this appeal is, whether the return of a constable, showing legal service on the defendant within the county, may, on certiorari from the court of common pleas, be shown by depositions to have been made without the county, and, therefore, invalid, the defendant not having appeared at the hearing. The learned judge of the court below was of opinion that the constable’s return of service could not be impeached by proof aliunde, and accordingly dismissed the exceptions filed to the proceedings of the justice.
An examination of the decisions in this State shows a conflict of authority in the courts of common pleas and no case in the Supreme Court or this court squarely ruling the question as to the material point involved; but in Lacock v. White, 19 Pa. 495, Chief Justice Black said: “But a judgment may be given against a party without service of a summons, and without notice of any kind until the time of appeal is past. Certainly
In Road Commissioners v. Fickinger, 51 Pa. 48, depositions were received in the court of common pleas on certiorari to show that the complainant before the justice had not been aggrieved by the action of the road commissioners, and, therefore, that his complaint was a fraud upon those interested in resisting what the commissioners had done. The Supreme Court, in reversing, said, by Mr. Justice Strong: “Parol evidence, to show what took place before the magistrate, is ordinarily not -admissible. By such evidence, the magistrate’s proceeding cannot be impeached. Very limited exceptions to the rule have been admitted. They do not extend further than to allow parol evidence to establish want of jurisdiction in the justice, his corruption, or refusal to hear testimony, or the fact of his having given
In Wistar v. Ollis, 77 Pa. 291, objection was taken in the common pleas that three of the jurors, who had been summoned by the sheriff in dispossession proceedings under the Act of March 21, 1772, had been irregularly summoned. The defendants had, nevertheless, appeared and offered testimony and a full trial been had on the merits. The Supreme Court (Mercür, J.) held that this could not be done, but said: “To establish fraud or want of jurisdiction, the court might have heard facts by affidavits,” adding, however: “But not to show an irregularity which contradicted the records.” The authorities cited by the court, however, show that, by this statement, reference was had to the proceedings following service of process, and especially to the hearing before the justice, for in Cunningham v. Gardner, 4 W. & S. 120, cited by Mr. Justice Mercur, the Supreme Court said: “It would be out of all analogy to all other legal proceedings to go back, after the full trial, according to the law applicable to the case, to the preliminary steps in the cause. If defendant had no
That a constable’s return, regular on its face, may be shown to be false by depositions in the Common Pleas on certiorari is sustained by a number of decisions in the courts of common pleas of this State. A full and comprehensive review of the authorities is contained in the opinion of Judge Landis in Commonwealth v. Blankenmeyer, 19 Lanc. L. R. 87. In that case, the constable’s sworn return set forth that he had made legal service of the summons on the defendant. It was shown by depositions that this was false, that the constable had not served the writ at all, but that he gave it to a detective who made-the service, and upon the faith of what the detective did, the constable made his return. The Commonwealth’s counsel raised the point that this evidence could not be considered; that, even if the service was irregular, it could not be inquired into by the defendant, the return being conclusive as to him, and his remedy being by suit against the constable for a false return. After noting the principal lower court opinions in support of this rule, Judge Landis goes on to say: “While it will be conceded that we cannot inquire, on certiorari, into the merits of the case as presented before the magistrate, we are of opinion that we have full power to see that the proceedings there undertaken are, in all respects, regular; and when it is shown to us, either by parol or otherwise, that there has been no legal service of the very writ under which the suit is
Similar rulings were made in Minogue v. Ashland Boro., 30 Pa. C. C. 205, Bechtel, P. J.; Diehl v. Stetler, 6 Lanc. L. R. 324, Albright, P. J.; Neff v. Gallagher, 16 Pa. C. C. 219, Gordon, P. J.; Shell v. McConnell, 1 Pears. 27, Pearson, P. J.; Sauser v. Werntz, 5 Lanc. Bar No. 18, p. 2, Walker, J.; Bosler v. Hoffman, 2 Justices Law Reporter 116, Erdman, P. J.
We have given due consideration to the opinions of the various judges of the courts of common pleas which are in accord with the view of the learned judge of the court below. Most of them definitely recognize that, under the decisions of the Supreme Court,- parol evidence may be received on certiorari to show want of jurisdiction in the magistrate, or to show fraud, partiality, corruption or misconduct on his part, but hold that, if the return of the constable is full and explicit, it is conclusive and cannot be controverted, by analogy to the rule that a sheriff’s return is conclusive and cannot be contradicted by evidence of its falsity: Keech v. Price, 16 Dist. R. 766, Butler, J.; Cooper v. Manning, 8 Lack. Jur. 370, Newcomb, J.; Bankert v. Sauft, 6
That a sheriff’s return is conclusive and cannot be contradicted in the action by evidence to the contrary is well settled: Ben Franklin Coal Co. v. Pennsylvania Water Co., 25 Pa. Superior Ct., 628; Keystone Telephone Co. v. Diggs, 69 Pa. Superior Ct. 299; Blythe v. Richards, 10 S. & R. 261; Diller v. Roberts, 13 S. & R. 60; although in the recent case of Park Bros. & Co. v. Oil City Boiler Works, 204 Pa. 453, Mr. Justice Mitchell said that “modern practice is liberal in allowing inquiry into the actual facts where the return itself is not full or explicit.”
As the alleged conclusiveness of a constable’s return is thus based upon the rule relative to the conclusiveness of a sheriff’s return, we may with profit examine the early decisions which announce' the doctrine that a sheriff’s return cannot be attacked in the action by evidence aliunde and see the reason and ground advanced for the rule and whether it applies with like force to the return of a constable.
In the case of Warder v. Tainter, 4 Watts 270, Mr. Justice Kennedy makes a most thorough review of the authorities and concludes: “Because the sheriff’s return being part of the record, Mildmay v. Smith, 2 Saund. 334 [344], note 2, no error could be assigned which would contradict it. And accordingly, it was adjudged in Corbet v. Marsh, Moo. 349, that the tenant against whom a recovery had been had in dower, could not assign for error that he was not summoned for fifteen days, nor proclaimed at the church door, according •to the statute of 31 Eliz., because the sheriff had returned him summoned and proclaimed; and that his remedy was against the sheriff. So in Plommer v.
It, therefore, appears that-the conclusiveness of the sheriff’s return and its immunity from contradiction in the action is due to the fact that it is part of the records of the court, which, as Sir William Blackstone said, “are of such high and supereminent 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 Bl. Comm. 24, citing Coke on Littleton, 260. But a justice’s court is not a court of record, and the return of a constable to said court is not, technically speaking, a record at all, at least not such a record as imports verity, as is the case with the record or court roll of a court of record, and it is, therefore, not entitled to the immunity from attack of a sheriff’s return.
No good reason exists, in our opinion, for making a distinction between the justice’s want of jurisdiction
We are of tbe opinion that tbe return of a. constable does not possess tbe conclusiveness of a sheriff’s return, and that, although regular on its face, it may, on certiorari from tbe common pleas, be shown by depositions to have been irregular and invalid. Tbe attack in such case is not collateral, but direct: Diehl v. Stetler, 6 Lanc. L. R. 324, and is in line with tbe settled law of this State, permitting want of jurisdiction in tbe justice, and fraud, corruption or partiality on bis part, to be shown in such manner.
Nor do. we think that tbe Service of Process Act of July 9, 1901, P. L. 614, makes any change as to tbe law in this respect. Section 16 of that act provides: “Writs issued by any magistrate, justice of tbe peace or aider-man, shall be served in tbe county wherein they are issued, by tbe constable or other officer therein to whom given for service, in tbe same manner and with like effect as similar writs are served by tbe sheriff when directed to him by tbe proper court.” This contains nothing as to tbe effect of tbe return of a constable. It only provides that, when be bas legally served process, it shall have tbe effect of service of a similar writ by tbe sheriff; it cannot be construed to extend tbe effect of a return and preclude a defendant who bas not been served from showing tbe fact, simply because tbe constable falsely makes return that be was served. There
It would have been better practice, if in filing his assignments of error, the counsel for the appellant had, by analogy to rules 15 and 16 of this court, assigned for error the exception to the. proceedings of the justice relied upon and the dismissal of such exception by the court below, ipsissimis verbis, but there is no rule of this court specifically requiring it in an appeal of this character,, and the assignments fairly bring the question before the court.
The fourth, fifth and sixth assignments are sustained, and the judgment of the court below is reversed and the record remitted that such judgment may be entered, in accordance with this opinion, as the evidence before the court by way of depositions, as to the service of process on the defendant, warrants. The costs to be paid by the appellee.