Gibbs v. Alberti

4 Yeates 373

• Court: Supreme Court of Pennsylvania
• Decided: March 15, 1807
• Status: Published

Opinion

Tilghman, C. J.

I will not presume any thing against the proceedings, or that the summons was served irregularly, in order to set aside the judgment. The words “30th July,” may possibly refer to the day of the return. The defendant comes before the court in a most unfavourable point of view, to obtain relief, after having already obtained a stay of execution for nine months. If the summons had not been regularly served, he might have appeared notwithstanding, and objected to the service, *- <7 el *‘which the. alderman would have allowed ; and the plaint-3751 ]ffs wouid then have proceeded against him by new process.

Brackenridge, J.

I think the prayer of the nine months respite before the alderman, is equivalent to an appearance on the day required by the summons, and pleading to the demand.

Yeates, J.

Though I am not disposed to form presumptions against the proceedings of a justice of the peace, I cannot overlook errors. If the 30th July refers to the day of hearing, then there would be but two days between the date of the summons and its return ; if to the time of service, it was not served in due time ; so that the summons or service would be erroneous. Admitting that the defendant comes before the court with an ill grace, after obtaining a respite of nine months, could he obtain redress in any other mode than what he has chosen ? Against the alderman he could have no remedy, because he was dead, and the certiorari was directed to his administrators. If a suit was brought against the constable, he would be told that he had made a special return, agreeably to the truth of the fact. But I submit to the opinion of the majority of the court.

Judgment affirmed.

Cited in io Watts 103 to shew that it is the settled rule of the Supreme Court to entertain no presumption, in any case of apparent jurisdiction, against the accuracy of a justice’s proceedings. Cited in 97 Pa. 440 in support of the decision that a person who has become bound by recognizance for stay of execution, in a judgment against husband and wife, cannot, after the stay has fully expired, relieve himself from liability, by shewing that the judgment has been improperly taken against the wife.