Haupt v. Davis

79 Pa. 238, 1875 Pa. LEXIS 195

• Court: Supreme Court of Pennsylvania
• Decided: October 6, 1875
• Status: Published

Opinion

Judgment was entered in the Supreme Court, October 11th 1875,

Pea Cubiam.

Monthly return days for Allegheny county are established for all civil process issued for the commencement of actions. A scire facias sur mortgage is no exception to this rule. The Act of 1705, giving the remedy by scire facias upon a mortgage, prescribes no return-day for the writ, and makes no provision inconsistent with the monthly return-days prescribed in. the 32d sect, of the Act of 1836, for the commencement in actions of Philadelpbia and Allegheny counties. The first scire facias can, therefore, be made returnable on any legal return-day, whether an intermediate monthly return-day or not. There is no reason, therefore, why the second writ after a return of nihil to the first, should not be governed by the same rule. Then the 36th sect, of the Act of June 1836, provides that writs of scire facias may be served and returned in the same manner provided for a summons in a personal action, and judgment by default taken at the same time and in the same manner as in a case of a summons unless it is otherwise specially provided. The Act of 1705 makes no other special provision. Hence there can be no reasonable objection to the return of writs of scire facias sur mortgage on the legal return-days of other civil process. Here the writs were issued to two regular return-days under the Act of 1836, and to different terms, the interval was reasonable, and judgment was not taken until a month after the second return-day. In principle, the case is governed by Magaw v. Stevenson, 1 Grant 405; Stevens v. North Penna. Coal Co., 11 Casey 265.

Judgment affirmed.