O'Leary v. Northumberland County

24 Pa. Super. 24 | Pa. Super. Ct. | 1903

Opinion by

Beaver, J.,

As intimated in an opinion just filed in No. 209 of October term, 1903, there is no exclusive right inhering in, and no exclusive duty imposed by statute upon, the sheriff of the county to serve subpoenas. They are not directed to the sheriff and the service made by any other officer or by a party interested in the suit is universally recognized as good and will be enforced by attachment.

The Act of July 11, 1901, P. L. 663, fixes the fees to be charged by the sheriff for serving a subpoena. It does not, however, confer any exclusive right .upon him to make such service. If service is made by any other person, recognized as a proper person to make it, compensation can be claimed, as is usual in such cases, according to the fees provided by law for an officer who is recognized or designated as a person qualified to make the service.

It is not claimed by the appellant, as we understand his argument, that the constable who made the service, if authorized to make it, is not entitled to the fees provided for in the sheriff’s fee bill contained in the act of 1901, supra. The claim is that the plaintiff is not entitled to the fees, because the sheriff was willing to serve the subpoenas which were actually served by the plaintiff. It is admitted that the county of Northumberland is liable to some person for the fees for the service of subpoenas claimed by the plaintiff. The real question is whether the plaintiff or the sheriff, both of whom claim them, is entitled thereto. The sheriff did not serve them and, as we have decided in No. 209, October term, 1903, above mentioned, that he is not entitled to them; and, inasmuch as the county received an equivalent for the amount claimed by the plaintiff under the fee bill and the plaintiff rendered the service, we can see no reason why, in the absence of any statute to the contrary, he should not recover under the facts of the case stated, as determined by the court below.

We think the judgment in favor of the plaintiff, upon the case stated, was properly entered.

Judgment affirmed.