Marcelli v. Fisher

Lackawanna County Court of Common Pleas

Marcelli v. Fisher

46 Pa. D. & C. 577, 1942 Pa. Dist. & Cnty. Dec. LEXIS 280

CourtPennsylvania Court of Common Pleas, Lackawanna County

DecidedDecember 18, 1942

Docketno. 572

StatusPublished

This text of 46 Pa. D. & C. 577 (Marcelli v. Fisher) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lackawanna County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Marcelli v. Fisher, 46 Pa. D. & C. 577, 1942 Pa. Dist. & Cnty. Dec. LEXIS 280 (Pa. Super. Ct. 1942).

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Opinion

Eagen, J.,

— This involves an action in assumpsit before a justice of the peace. The summons was returnable June 2, 1942, between the hours of 6:00 and 7:00 p.m. An examination of the record discloses that plaintiff appeared on June 2,1942, and after hearing his testimony judgment was rendered in his favor against defendant, who was in default. The record fails to disclose at what hour plaintiff appeared before the justice of the peace and this is a fatal defect. In Courtright et al. v. Harringar, 7 Lane. 30, it is said: [578]*578well as the day mentioned in the summons. This rule seems very strict, but it is too well settled by precedents in this Court for us to overthrow it. Lindsay vs. Sweeney, 6 Phila., 309; Smith vs. Featherston, 10 Phila., 306; Culver vs. Behee, 2 Kulp, 266; Keeley vs. Wenzel, 2 Kulp, 360; Perrigo vs. Nichols, 3 Kulp, 472.”

[577]*577“Where a judgment is entered by default, the record should show that the plaintiff appeared at the hour as

[578]*578In view thereof, now, December 18,1942, the exceptions and certiorari filed to the judgment of the justice of the peace are sustained and the judgment is reversed.

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Eagen, J.,

— This involves an action in assumpsit before a justice of the peace. The summons was returnable June 2, 1942, between the hours of 6:00 and 7:00 p.m. An examination of the record discloses that plaintiff appeared on June 2,1942, and after hearing his testimony judgment was rendered in his favor against defendant, who was in default. The record fails to disclose at what hour plaintiff appeared before the justice of the peace and this is a fatal defect. In Courtright et al. v. Harringar, 7 Lane. 30, it is said: [578]*578well as the day mentioned in the summons. This rule seems very strict, but it is too well settled by precedents in this Court for us to overthrow it. Lindsay vs. Sweeney, 6 Phila., 309; Smith vs. Featherston, 10 Phila., 306; Culver vs. Behee, 2 Kulp, 266; Keeley vs. Wenzel, 2 Kulp, 360; Perrigo vs. Nichols, 3 Kulp, 472.”

[577]*577“Where a judgment is entered by default, the record should show that the plaintiff appeared at the hour as

[578]*578In view thereof, now, December 18,1942, the exceptions and certiorari filed to the judgment of the justice of the peace are sustained and the judgment is reversed.

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Bluebook (online)

46 Pa. D. & C. 577, 1942 Pa. Dist. & Cnty. Dec. LEXIS 280, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marcelli-v-fisher-pactcompllackaw-1942.