Holly v. Travis

71 Pa. Super. 527, 1919 Pa. Super. LEXIS 147

• Court: Superior Court of Pennsylvania
• Decided: April 21, 1919
• Docket: Appeal, No. 24
• Status: Published

Opinion

Opinion by

Keller, J.,

The sole question raised by this appeal is, whether the return of a constable, showing legal service on the defendant within the county, may, on certiorari from the court of common pleas, be shown by depositions to have been made without the county, and, therefore, invalid, the defendant not having appeared at the hearing. The learned judge of the court below was of opinion that the constable’s return of service could not be impeached by proof aliunde, and accordingly dismissed the exceptions filed to the proceedings of the justice.

An examination of the decisions in this State shows a conflict of authority in the courts of common pleas and no case in the Supreme Court or this court squarely ruling the question as to the material point involved; but in Lacock v. White, 19 Pa. 495, Chief Justice Black said: “But a judgment may be given against a party without service of a summons, and without notice of any kind until the time of appeal is past. Certainly this is a great injury, and if there be no remedy but to open the judgment, it would be hard to deny that. There is a remedy, however. Such a judgment would be reversed on certiorari. The twenty days’ limitation does not apply to cases in which the justice has no jurisdiction, either of the parties or the subject-matter, and he has no jurisdiction of the former when they are not legally summoned. The fact that notice was not given may be proved by parol, notwithstanding some dicta to the contrary.” It is true that the actual point involved in that case was whether the court of common pleas had power to open a judgment entered on a transcript of a judgment-by a justice of the peace, filed in court as a lien; but, in holding that it had not, the Chief Justice naturally pointed out the remedy which was open to the defendant, who hacL alleged in his petition to open the judgment that he lived outside the State when suit was brought and had not been served with process. The part of the opinion quoted above is, therefore, not only the expression of a great lawyer and great judge as to the settled practice of his day, but also was germane and pertinent to the decision, and not a mere obiter dictum.

In Road Commissioners v. Fickinger, 51 Pa. 48, depositions were received in the court of common pleas on certiorari to show that the complainant before the justice had not been aggrieved by the action of the road commissioners, and, therefore, that his complaint was a fraud upon those interested in resisting what the commissioners had done. The Supreme Court, in reversing, said, by Mr. Justice Strong: “Parol evidence, to show what took place before the magistrate, is ordinarily not -admissible. By such evidence, the magistrate’s proceeding cannot be impeached. Very limited exceptions to the rule have been admitted. They do not extend further than to allow parol evidence to establish want of jurisdiction in the justice, his corruption, or refusal to hear testimony, or the fact of his having given judgment on the oath of the party alone. All the exceptions allowed relate to the conduct of the magistrate. None extend so far as to admit evidence of the conduct of a party.” It will be noted that the learned justice was speaking of the admissibility of parol evidence as to “what took place before the magistrate,” not as to matters that had occurred before the hearing, and held in effect that the merits of the magistrate’s decision could not be inquired into on certiorari, nor the fraud of a party be set up as ground for reversal in the common pleas; but the opinion recognizes the well-settled rule that evidence of the fraud, partiality or corruption of the justice of the peace can be shown by depositions in the common pleas on certiorari, and that want of jurisdiction in the justice can be similarly attacked and proven, and, as pointed out in Lacock v. .White, supra, the justice has no jurisdiction if the defendant has not been legally summoned.

In Wistar v. Ollis, 77 Pa. 291, objection was taken in the common pleas that three of the jurors, who had been summoned by the sheriff in dispossession proceedings under the Act of March 21, 1772, had been irregularly summoned. The defendants had, nevertheless, appeared and offered testimony and a full trial been had on the merits. The Supreme Court (Mercür, J.) held that this could not be done, but said: “To establish fraud or want of jurisdiction, the court might have heard facts by affidavits,” adding, however: “But not to show an irregularity which contradicted the records.” The authorities cited by the court, however, show that, by this statement, reference was had to the proceedings following service of process, and especially to the hearing before the justice, for in Cunningham v. Gardner, 4 W. & S. 120, cited by Mr. Justice Mercur, the Supreme Court said: “It would be out of all analogy to all other legal proceedings to go back, after the full trial, according to the law applicable to the case, to the preliminary steps in the cause. If defendant had no notice, if the proceeding was ex parte, this might be the case.” And in Buchanan v. Baxter, 67 Pa. 348: “The certiorari does not bring up the evidence given before the justice; it is, therefore, only the regularity of the proceedings that the common pleas were to examine. It is true that that court might, if it chose, go farther and hear facts by affidavits, but it would be an unsafe practice, as a rule.” Wistar v. Ollis distinctly recognizes the right to prove want of jurisdiction or fraud or corruption on the part of the justice by depositions.

That a constable’s return, regular on its face, may be shown to be false by depositions in the Common Pleas on certiorari is sustained by a number of decisions in the courts of common pleas of this State. A full and comprehensive review of the authorities is contained in the opinion of Judge Landis in Commonwealth v. Blankenmeyer, 19 Lanc. L. R. 87. In that case, the constable’s sworn return set forth that he had made legal service of the summons on the defendant. It was shown by depositions that this was false, that the constable had not served the writ at all, but that he gave it to a detective who made-the service, and upon the faith of what the detective did, the constable made his return. The Commonwealth’s counsel raised the point that this evidence could not be considered; that, even if the service was irregular, it could not be inquired into by the defendant, the return being conclusive as to him, and his remedy being by suit against the constable for a false return. After noting the principal lower court opinions in support of this rule, Judge Landis goes on to say: “While it will be conceded that we cannot inquire, on certiorari, into the merits of the case as presented before the magistrate, we are of opinion that we have full power to see that the proceedings there undertaken are, in all respects, regular; and when it is shown to us, either by parol or otherwise, that there has been no legal service of the very writ under which the suit is begun, we do not doubt our authority to set the proceedings aside. We think, therefore, that the rule as laid down, that the constable’s return can in no case be contradicted by parol, is too broadly stated.” The same learned judge adopted the same conclusion in: Nissley v. Hoffman Bros., 20 Lanc. L. R. 49, where the constable made return that the summons had been duly served on all the defendants, whereas it was shown by depositions that it was served only on M. E. Hoffman, who was not a member of the defendant firm; Bertzfield v. Bertzfield, 21 Lanc. L. R. 370, where return was made that the summons had been served on an adult member of the defendant’s family, whereas in fact it was served on an eleven-year-old daughter; and Brown v. Cohn, 21 Lanc. L. R. 310, where service was made on H. J. Cohn and return made that the defendant, M. L. Cohn, had been duly served.

Similar rulings were made in Minogue v. Ashland Boro., 30 Pa. C. C. 205, Bechtel, P. J.; Diehl v. Stetler, 6 Lanc. L. R. 324, Albright, P. J.; Neff v. Gallagher, 16 Pa. C. C. 219, Gordon, P. J.; Shell v. McConnell, 1 Pears. 27, Pearson, P. J.; Sauser v. Werntz, 5 Lanc. Bar No. 18, p. 2, Walker, J.; Bosler v. Hoffman, 2 Justices Law Reporter 116, Erdman, P. J.

We have given due consideration to the opinions of the various judges of the courts of common pleas which are in accord with the view of the learned judge of the court below. Most of them definitely recognize that, under the decisions of the Supreme Court,- parol evidence may be received on certiorari to show want of jurisdiction in the magistrate, or to show fraud, partiality, corruption or misconduct on his part, but hold that, if the return of the constable is full and explicit, it is conclusive and cannot be controverted, by analogy to the rule that a sheriff’s return is conclusive and cannot be contradicted by evidence of its falsity: Keech v. Price, 16 Dist. R. 766, Butler, J.; Cooper v. Manning, 8 Lack. Jur. 370, Newcomb, J.; Bankert v. Sauft, 6 , Bittenger, J.; Young v. Trunkley, 22 Pa. C. C. 127, Schuyler, P. J.; Foy v. Rice, 3 Lack. Jur. 17, Archbald, P. J.; Hummell v. Hoffecker, 5 Lack. L. N. 162, Archbald, P. J.; Biles v. Basler, 24 Pa. C. C. 3, Dunham, P. J.; Link v. Repple, 7 Pa. C. C. 138, Mitchell, P. J.; Luke v. Schleger, 3 Kulp 505, Woodward, J.

That a sheriff’s return is conclusive and cannot be contradicted in the action by evidence to the contrary is well settled: Ben Franklin Coal Co. v. Pennsylvania Water Co., 25 Pa. Superior Ct., 628; Keystone Telephone Co. v. Diggs, 69 Pa. Superior Ct. 299; Blythe v. Richards, 10 S. & R. 261; Diller v. Roberts, 13 S. & R. 60; although in the recent case of Park Bros. & Co. v. Oil City Boiler Works, 204 Pa. 453, Mr. Justice Mitchell said that “modern practice is liberal in allowing inquiry into the actual facts where the return itself is not full or explicit.”

As the alleged conclusiveness of a constable’s return is thus based upon the rule relative to the conclusiveness of a sheriff’s return, we may with profit examine the early decisions which announce' the doctrine that a sheriff’s return cannot be attacked in the action by evidence aliunde and see the reason and ground advanced for the rule and whether it applies with like force to the return of a constable.

In the case of Warder v. Tainter, 4 Watts 270, Mr. Justice Kennedy makes a most thorough review of the authorities and concludes: “Because the sheriff’s return being part of the record, Mildmay v. Smith, 2 Saund. 334 [344], note 2, no error could be assigned which would contradict it. And accordingly, it was adjudged in Corbet v. Marsh, Moo. 349, that the tenant against whom a recovery had been had in dower, could not assign for error that he was not summoned for fifteen days, nor proclaimed at the church door, according •to the statute of 31 Eliz., because the sheriff had returned him summoned and proclaimed; and that his remedy was against the sheriff. So in Plommer v. Webb, Note, 2 Lord Raym. 1415, in debt on bond in the common pleas, where non est factum was pleaded, and verdict and judgment given for the plaintiff, it was held in the kings bench, on writ.of error, that the death of Webb, before the day of nisi prius, could not be assigned for error, because the record mentioned that he appeared that day. And in Jenk. 99, ca. 92, it was held, that a judgment given for husband and wife upon a verdict found in their favbr, at nisi prius, after the death of the wife, could not be reversed for such cause upon writ of error, although upon an issue joined for having the fact ascertained, it was found by the jury that the wife died before the nisi prius; because the postea of the nisi prius recited that the husband and wife appeared at the nisi prius. And again, in Helbert [Helbut] v. Held, 2 Lord Raym. 1414, it was decided that nothing can be assigned for error which is contrary to the record; and this is fully supported both by prior and subsequent cases on the subject.” See, also, Bacon’s Abridgment, Bouvier’s Ed., Vol. III, p. 371, etc.

It, therefore, appears that-the conclusiveness of the sheriff’s return and its immunity from contradiction in the action is due to the fact that it is part of the records of the court, which, as Sir William Blackstone said, “are of such high and supereminent authority that their truth is not to be called in question. For it is a settled rule and maxim that nothing shall be averred against a record, nor shall any plea or even proof be admitted to the contrary”: 3 Bl. Comm. 24, citing Coke on Littleton, 260. But a justice’s court is not a court of record, and the return of a constable to said court is not, technically speaking, a record at all, at least not such a record as imports verity, as is the case with the record or court roll of a court of record, and it is, therefore, not entitled to the immunity from attack of a sheriff’s return.

No good reason exists, in our opinion, for making a distinction between the justice’s want of jurisdiction of the subject matter aud Ms want of jurisdiction of tbe parties, and holding that parol evidence is admissible to prove tbe one and not admissible to prove tbe other. Tbe fact that tbe party aggrieved by an erroneous return bas a right of action against tbe constable and bis bond is not conclusive; such action is hedged about with conditions and limitations which detract from its adequacy as a remedy. And besides, a party who bas been injured by tbe fraud or misconduct of a justice bas likewise an action against him, but be is not precluded thereby from assigning it for error on certiorari.

We are of tbe opinion that tbe return of a. constable does not possess tbe conclusiveness of a sheriff’s return, and that, although regular on its face, it may, on certiorari from tbe common pleas, be shown by depositions to have been irregular and invalid. Tbe attack in such case is not collateral, but direct: Diehl v. Stetler, 6 Lanc. L. R. 324, and is in line with tbe settled law of this State, permitting want of jurisdiction in tbe justice, and fraud, corruption or partiality on bis part, to be shown in such manner.

Nor do. we think that tbe Service of Process Act of July 9, 1901, P. L. 614, makes any change as to tbe law in this respect. Section 16 of that act provides: “Writs issued by any magistrate, justice of tbe peace or aider-man, shall be served in tbe county wherein they are issued, by tbe constable or other officer therein to whom given for service, in tbe same manner and with like effect as similar writs are served by tbe sheriff when directed to him by tbe proper court.” This contains nothing as to tbe effect of tbe return of a constable. It only provides that, when be bas legally served process, it shall have tbe effect of service of a similar writ by tbe sheriff; it cannot be construed to extend tbe effect of a return and preclude a defendant who bas not been served from showing tbe fact, simply because tbe constable falsely makes return that be was served. There was no sufficient evidence either in the return of the justice or in the depositions that the defendant had appeared either in person or by attorney: Bertzfield v. Bertzfield, 21 Lanc. L. R. 370.

It would have been better practice, if in filing his assignments of error, the counsel for the appellant had, by analogy to rules 15 and 16 of this court, assigned for error the exception to the. proceedings of the justice relied upon and the dismissal of such exception by the court below, ipsissimis verbis, but there is no rule of this court specifically requiring it in an appeal of this character,, and the assignments fairly bring the question before the court.

The fourth, fifth and sixth assignments are sustained, and the judgment of the court below is reversed and the record remitted that such judgment may be entered, in accordance with this opinion, as the evidence before the court by way of depositions, as to the service of process on the defendant, warrants. The costs to be paid by the appellee.