211 Pa. 233 | Pa. | 1905
Opinion by
This was an action of trespass, commenced by capias ad respondendum, against Mary Paul and Polly Perkins, two minors, to recover damages for an alleged assault and battery. No service was made on either of the defendants. On the suggestion of plaintiffs’ counsel, Charles P. Perkins entered bail for his daughter, Polly Perkins. Subsequently, Polly Perkins, “by her next friend, Charles P. Perkins,” obtained a rule to quash the capias issued against her, alleging, inter alia, in her affidavit in support of the rule the following: “ That she has been unlawfully arrested and held to bail in the sum of twelve hundred dollars under a capias ad respondendum issued in the above case. That the said defendant being a minor, the said capias has been unlawfully and improperly executed and the said minqr’s arrest is contrary to the act of assembly regulating the service of said capias.” The learned judge of the court below quashed the writ, saying in his opinion: “ The defendant must be regarded as having been arrested and held to bail, and as she was not liable to arrest the writ should be quashed: Vocht v. Kuklence, 119 Pa. 365; Whalen v. Gabell, 120 Pa. 284.”
It is elementary law that an infant is liable in an action ex
This act made no change in the form of the writ provided by the act of 1836, nor prevented the issuing of the writ in proper cases against an infant. It simply provides the manner in which a writ of capias ad respondendum shall be served on an infant. The writ cannot be served as formerly by arresting and taking him into custody and requiring him to find security for his appearance, but the service is made “by serving the writ as in case of a summons.”
In the case in hand the writ itself was good. It was in proper form; was issued by the proper officer of a court of competent jurisdiction, and against a party subject to its command. It was in all respects formal and legal, and, if properly
The writ in this case was not served on Polly Perkins “ as in ease of a summons,” and hence there was no service on her at all. Unless the statutory mode of service of a writ is observed, it is not a service, and the defendant is not compelled to obey the command of the writ. The defendant was not required, either in person, by guardian or by next friend, to enter security for her appearance, and her father’s action in giving bail was in no sense an appearance by her.
In their printed argument the learned counsel for the appellee say: “ The only question before the court was the illegal and improper use of the writ after it had been issued, and this, it was decided, warranted the quashing of the writ, no matter how regular its issue originally may have been.” But this position is clearly untenable. The writ being regular and proper, it was the duty of the sheriff to serve it in the manner pointed out by the statute. If he or the plaintiffs’ counsel made an illegal and improper use of the writ, they may be responsible to the defendant for their act, but it did not invalidate the writ itself or the act of the court in issuing it. The cause of action, set forth in the statement justified the issuance of the writ, and if the sheriff or the plaintiffs’ counsel, through inadvertence or for any reason, caused it to be served improperly, it is not a sufficient reason for quashing it. If there has heen injury resulting from an abuse of the writ, it must be redressed in the usual and orderly way, and not summarily by quashing a writ regularly issued to enforce a demand which the pleadings disclose to be legal.
The learned judge of the court below cites in support of his
The cases cited by the appellee from the reports of this court to sustain the court in quashing the writ in this case are all cases in which the defendant was not subject to arrest, and hence the writ was improper and could not legally be issued against him. In Barnard v. Field, 1 Dall. 348, the capias was quashed on the ground that the defendant was a freeholder and exempt from arrest under the act of assembly. It was held
The first assignment of error is sustained, the order quashing the writ is reversed, the writ is reinstated, and a procedendo is awarded.