Lehigh Valley Insurance v. Fuller

81 Pa. 398, 1876 Pa. LEXIS 167

• Court: Supreme Court of Pennsylvania
• Decided: May 8, 1876
• Status: Published

Opinion

Mr. Justice Sharswood

delivered the opinion of the court,

The decision of the court below upon the motion to open the judgment is not the subject of review here : Bunce v. Wightman, 5 Casey 335; Henry v. Brothers, 12 Wright 70; Ringwalt v. Brindle, 9 P. F. Smith 51; Bredon v. Gilliland, 17 Id. 34. Nor can we inquire into the question of fact whether Soellner, upon whom the service of the writ Avas made, was an agent of the 'corporation garnishees, upon whom a lawful service could be made. The affidavits and depositions are no part of the record, and are not before us: Calhoun v. Logan, 10 Harris 46.

The only question which properly arises is as to the regularity of the judgment by default for want of appearance. That depends upon whether the. return by the marshal showed a laAvful service upon the garnishees. The defendants in error rest it upon the first section of the Act of May 4th 1852, Pamph. L. 574, entitled “ An Act relative to courts in this Commonwealth.” It provides “ that when any person or persons, being residents of this CommonAvealth, shall engage in business in any other county at the time of the issuing of such writ or process, it shall be lawful for the officer charged with the service thereof to serve any Avrit of summons or any other mesne process upon the agent or clerk of any such defendant at the usual place of business or residence of such agent or clerk, and to have the same effect as if served upon the principal personally.”

Conceding that an attachment execution, Avith the clause of scire facias to the garnishee embodied in it, is a “ summons or other mesne process,” the legislature has seen fit to provide that the service shall be “at the usual place of business or residence” of the agent, and in no other way. A personal service is not sufficient. Why, it is not our place to inquire. Ita lex scripta est. It is clear that the return must shoAV on its face a legal service : Winrow v. Raymond, 4 Barr 501; Wilson v. Hayes, 6 Harris 354 ; Weaver v. Springer, 2 Miles 42.

Judgment reversed.