McDonald v. Simcox

Citation98 Pa. 619
PartiesMcDonald <I>versus</I> Simcox.
Decision Date21 November 1881
CourtUnited States State Supreme Court of Pennsylvania

Before SHARSWOOD, C.J., MERCUR, GORDON, PAXSON, STERRETT and GREEN, JJ. TRUNKEY, J., absent

ERROR to the Court of Common Pleas of Venango county: Of October and November Term 1881, No. 226.

Crosby & Crosby, and Osmer, Dale & Freeman, for the plaintiffs in error. The transcript showing but three days between the date and the return day of the summons, the judgment was coram non judice, and void: Camp v. Wood, 10 Watts 118.

By the provisions of the Act of 1842, Purd. Dig. 857, pl. 76, two distinct modes of proceeding against persons residing out of the county are prescribed, to wit: By summons or attachment, either one of which must be made returnable not less than two nor more than four days from the date thereof; and must be served at least two days before the time of appearance mentioned therein. If the suit be commenced by attachment and shall have been personally served on the defendant at least two days before the return day thereof, the justice shall proceed to hear and determine the case without a further writ. But if (as in this case) the same shall not have been so served, this act provides that "a summons shall issue against the defendant, returnable as summonses issued by justice of the peace are now by law returnable." Purd. Dig. 858, pl. 78, 80.

The phrase, "returnable as summonses . . . are now by law returnable," cannot but refer to the then existing statute prescribing the time within which a summons issued by a justice must be made returnable, which was the act of 1810, Purd. Dig. 850, pl. 40, and is in these words: "If on a summons commanding the defendant, &c., on a day certain therein to be expressed, not more than eight nor less than five days from the date of the summons." That the words "are now by law returnable," as used in the act of 1842, Purd. Dig. 858. pl. 80, were intended to refer to the act of 1810, supra, is manifest from the fact that that was then the only law upon the subject.

The Act of 1810 has not been repealed. Under its provisions, by far the greater part of the litigation in justices' courts has been, and is conducted. Its provisions, in respect to the time within which a summons shall be made returnable, are not in conflict with the provisions, in this respect, of the Act of 1842; but on the contrary, are consistent and harmonious therewith.

The attachment, and the execution, moreover, were void, because directed generally against Stewart & Co., and not against the partners' interests in the partnership: Act of April 8th 1873, Purd. Dig. Suppl. 1813, pl. 1; Hare v. Commonwealth, 8 W.N.C. 121; Deal v. Bogue, 8 Har. 228; Durborrow's Appeal, 3 Norris, 404. Stewart was properly joined as a coplaintiff in this action. The omission of his name would have been a good plea in abatement: Addison v. Overend, 6 Term Rep. 766.

Charles W. Mackey and Dodd & Lee, for defendants in error.

Mr. Justice MERCUR delivered the opinion of the court November 21st, 1881.

This was an action of trover to recover for chattels formerly the property of the plaintiffs, sold by a constable on an execution. It issued on a judgment recovered against them or some of them in favor of one King. He bought the property, and afterwards sold it to the defendants. The plaintiffs now question the effect of that judgment, and attack its validity.

It is settled law that the regularity of a judgment of a court having jurisdiction of the subject matter cannot be questioned in a collateral proceeding. Although a judgment recovered before a justice of the peace be irregular, yet if he has jurisdiction of the subject matter, the only redress of the defendants therein is by certiorari. If they acquiesce therein by taking no steps to reverse it they thereby make it as good and valid as if all the prerequisites of the law had been observed. A title to property acquired under judgment and execution cannot be defeated by proving some defect in the original process. The judgment of every court pronounced on a subject within its jurisdiction is conclusive and binding on all other courts, except those only before which it comes by appeal, certiorari or writ of error: Tarbox v. Hays, 6 Watts 398; Hauer's Appeal, 5 W. & S. 473; Sloan v. McKinstry, 6 Harris 120; Billings & May v. Russell, 11 Id. 189.

The judgment in question was obtained on proceedings commenced by attachment under the 26th section of the Act of July 12th 1842, P.L. 345, against H. Stewart & Co. as nonresidents of the county, having personal property therein. This section provides in case no capias can issue under section 24 of the act, "and the...

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22 cases
  • Sperry v. Seidel
    • United States
    • United States State Supreme Court of Pennsylvania
    • April 22, 1907
    ...Anderson, 103 Ill. 403; West v. Smallwood, 3 M. & W. 418; Carratt v. Morley, 1 A. & E. (N.S.) 18; Tarbox v. Hays, 6 Watts, 398; McDonald v. Simcox, 98 Pa. 619; Hauer's App., 5 W. & S. 473; Sloan v. McKinstry, 18 Pa. 120; Billings v. Russell, 23 Pa. 189; Sweeney v. Girolo, 154 Pa. 609; Cresc......
  • Sweeney v. Girolo
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    • United States State Supreme Court of Pennsylvania
    • May 8, 1893
    ...... v. Buckman, 121 Pa. 248; Tarbox v. Hays, 6. Watts, 398; Thompson v. O'Hanlen, 6 Watts,. 492; Spade v. Bruner & Carl, 72 Pa. 57; McDonald. v. Simcox, 98 Pa. 619; Kramer v. Wellendorf,. 129 pa. 547; Baird v. Campbell, 4 W. & S. 191;. Sloan v. McKinstry, 18 Pa. 120; Pantall v. Dickey,. ......
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    • Superior Court of Pennsylvania
    • July 14, 1909
    ......v. East End Oil Co.,. 10 Pa.Super. 582; Seitz & Co. v. Buffum & Co., 14. Pa. 69; Carey v. Bright, 58 Pa. 70; McDonald v. Simcox, 98 Pa. 619; Paxson v. Beans, 3 Phila. 433; Hocking v. Hamilton, 158 Pa. 107; Kenney v. Altvater, 77 Pa. 34; Blair v. Wood, 108 Pa. ......
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    • January 7, 1895
    ......-- Plaintiff cannot recover a commission because. he did not find a purchaser able, ready and willing to. purchase on the terms offered: McDonald v. Simcox,. 98 Pa. 619; R.R. v. Rolling Mill Co., 119 U.S. 149;. Watson v. Brooks, 11 Oregon, 271; Martin v. Fuel. Co., 22 F. 596; McGavock v. ......
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