46 Pa. Super. 630 | Pa. Super. Ct. | 1911
Opinion by
The proceedings brought up for review by this appeal may be summarized as follows: May 22, 1909, judgment before a justice of the peace, in favor of the plaintiff and against the defendant, in an action of debt; September 8, 1909, attachment execution issued and returned non est inventus, etc., as to the defendant; September 15, 1909, appearance and acceptance of service by the garnishee named in the writ; September 16, 1909, judgment entered against the garnishee for $157.50 with costs; “said judgment [we quote from the transcript] being against the funds that he has in his possession owing to the said John B. Poore, and not against any personal property or real estate of the said garnishee”; October 27, 1909, notice given by defendant through his attorney, and entered on the justice’s docket, that he claimed the exemption of $300; February 25, 1910, certiorari issued out of the common pleas; exception by defendant that the justice was without jurisdiction because the attachment was not preceded by an execution returned “no goods”; motion by plaintiff to quash the certiorari, because it was not sued out within twenty days. The court sustained the motion, and its reasons for so doing are clearly set forth in the following excerpt from the opinion of Judge Newcomb: “Under the cases referred to it may be taken for granted that in the sense of a condition precedent to an attachment, the return in question is jurisdictional. But an examination of the best-considered cases touching the twenty-day rule shows a well-marked distinction as regards the effect of appellant’s laches where the attempt has been to avoid judgment on a belated writ. The cases are practically uniform where the point involved has been a defect of personal juris
In the case of Silvergood v. Storrick, 1 Watts, 532, it was held that the provision of sec. 22 of the act of March 20, 1810, 5 Sm. Laws 161, relative to the conclusiveness of the action of the common pleas extended to every judgment or proceeding of that court on writs of certiorari issued under that act, “whether as regards reversal, costs, execution or any other matter.” So that there can be no doubt that it applies as well where the court quashed the certiorari because not sued out in time as where the court affirmed or reversed the judgment. But it was held in Strouse v. Lawrence, 160 Pa. 421, that a proceeding by attachment’ execution before a justice of the peace under the Act of April 15, 1845, P. L. 459, is not embraced within that provision of sec. 22 of the act of 1810, and an appeal will lie from the judgment of the common pleas upon certiorari in such case. It therefore becomes necessary to decide whether or not the court erred in holding that the certiorari was sued out too late. Section 21 of the act of 1810, provides: “That no judgment shall be
Judgment affirmed.