Gaynor v. Wilde

38 Pa. 300, 1861 Pa. LEXIS 115

• Court: Supreme Court of Pennsylvania
• Decided: March 1, 1861
• Status: Published

Opinion

The opinion of the court was delivered, by

Woodward, J. — The 37th section of the Act of 13th June 1836, (Purdon 23), authorizes sheriffs in cases of trespass on real estate and of nuisance, by non-residents, to go beyond their proper bailiwicks “ into an adjoining county” to serve process, and we are asked, in this case, not to decide that Montgomery is an adjoining county to Schuylkill, but to disregard those interjected and parenthetical words in the section, and to decide that the defendant was well served in Montgomery county with process from the Common Pleas of Schuylkill county.

An application to the legislature to repeal these words would be most reasonable, and doubtless successful, for the Act of 14th April 1851, extending the remedy of the above sections to actions by mortgagees, has already repealed 'them in that class of cases, and there is no more retaining them in one form of action than in another. Besides, public convenience-and the administration of justice in local actions would be promoted by the repeal. But we have no legislative power. We declaro the law as it is made, and do not make'it. Those words stand legibly in the enactment, and until the legislature repeals them, we must say that the power of the sheriff to serve process beyond his bailiwick is limited to the t£ adjoining county.”

The judgment is affirmed.