Cancellier v. Cancellier

Washington County Court of Common Pleas

Cancellier v. Cancellier

85 Pa. D. & C. 91, 1952 Pa. Dist. & Cnty. Dec. LEXIS 160

CourtPennsylvania Court of Common Pleas, Washington County

DecidedOctober 27, 1952

Docketno. 46

StatusPublished

This text of 85 Pa. D. & C. 91 (Cancellier v. Cancellier) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Washington County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cancellier v. Cancellier, 85 Pa. D. & C. 91, 1952 Pa. Dist. & Cnty. Dec. LEXIS 160 (Pa. Super. Ct. 1952).

Pincite

Opinion

Gibson, P. J.,

The difficulty with this proceeding is obvious. There has been no service of the complaint on defendant.

Procedural Rule 1124 regulates the service in divorce proceedings: (1) It may be served by the sheriff, within the Commonwealth, by handing a copy to defendant by either himself or the deputization of the sheriff of any county in which defendant may be found; (2) by a constable of the county in which the action is pending, if authorized by rule of court; (3) by plaintiff, outside the Commonwealth, by having an attorney-at-law, other than attorney for plaintiff, hand a copy to defendant; (4) by sending a copy by registered mail to defendant and securing a return receipt signed by defendant personally.

If service cannot be made under 1 and 2, and has not been made under 3 and 4, and the sheriff or constable has made a return or affidavit of “Not Found”, plaintiff may have service by publication which shall be made by the sheriff. The requirements for publication must be strictly complied with. One of the essentials is a return by the sheriff or affidavit by a constable, where service by constable is authorized, that defendant was “Not Found”.

In this case, the attorney for plaintiff makes an affidavit that he made two efforts to serve defendant by registered mail outside the State of Pennsylvania and that both failed and on neither of them did he secure a return receipt signed by defendant personally, and set forth “that therefore a return of ‘Not Found’ is hereby made by reason thereof”. We do not find any authority in the attorney for plaintiff substituting himself for the sheriff.

On the same day, the attorney for plaintiff filed a praecipe for publication. In accordance therewith an [93]*93order of publication was issued and the sheriff proceeded with an attempted service by publication without having previously made a return of “Not Pound”.

The result of all this is there is no service whatever and the decree at this time must be refused.

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Gibson, P. J.,

The difficulty with this proceeding is obvious. There has been no service of the complaint on defendant.

Procedural Rule 1124 regulates the service in divorce proceedings: (1) It may be served by the sheriff, within the Commonwealth, by handing a copy to defendant by either himself or the deputization of the sheriff of any county in which defendant may be found; (2) by a constable of the county in which the action is pending, if authorized by rule of court; (3) by plaintiff, outside the Commonwealth, by having an attorney-at-law, other than attorney for plaintiff, hand a copy to defendant; (4) by sending a copy by registered mail to defendant and securing a return receipt signed by defendant personally.

If service cannot be made under 1 and 2, and has not been made under 3 and 4, and the sheriff or constable has made a return or affidavit of “Not Found”, plaintiff may have service by publication which shall be made by the sheriff. The requirements for publication must be strictly complied with. One of the essentials is a return by the sheriff or affidavit by a constable, where service by constable is authorized, that defendant was “Not Found”.

In this case, the attorney for plaintiff makes an affidavit that he made two efforts to serve defendant by registered mail outside the State of Pennsylvania and that both failed and on neither of them did he secure a return receipt signed by defendant personally, and set forth “that therefore a return of ‘Not Found’ is hereby made by reason thereof”. We do not find any authority in the attorney for plaintiff substituting himself for the sheriff.

On the same day, the attorney for plaintiff filed a praecipe for publication. In accordance therewith an [93]*93order of publication was issued and the sheriff proceeded with an attempted service by publication without having previously made a return of “Not Pound”.

The result of all this is there is no service whatever and the decree at this time must be refused.

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Bluebook (online)

85 Pa. D. & C. 91, 1952 Pa. Dist. & Cnty. Dec. LEXIS 160, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cancellier-v-cancellier-pactcomplwashin-1952.