Bird v. Sleppy

• Citation: 265 Pa. 295,108 A. 618
• Decision Date: 21 June 1919
• Docket Number: 291
• Parties: Bird v. Sleppy, Appellant
• Court: United States State Supreme Court of Pennsylvania

108 A. 618

265 Pa. 295

Bird v. Sleppy, Appellant

No. 291

Supreme Court of Pennsylvania

June 21, 1919

Argued May 12, 1919

Appeal, No. 291, Jan. T., 1919, by defendant, B. W. Sleppy Jr., from order of C.P. Northumberland Co., No. 439, Equity Docket, discharging rule to set aside the service of bill in equity in the case of Christiana C. Bird v. Edward W. Sleppy and B. W. Sleppy, Jr. Reversed.

Rule to vacate order authorizing extraterritorial service of bill in equity, and to set aside such service. Before CUMMINGS, P.J.

The court discharged the rule. B. W. Sleppy, Jr., appealed.

Error assigned was discharging rule to set aside service.

W. A Valentine, with him C. D. Coughtin and B. W. Davis, for appellant, cited: Coleman's App., 75 Pa. 441; Vandersloot v. Pa. W. & P. Co., 259 Pa. 99; Smith v. Carter, 219 Pa. 315.

J. Fred Schaffer, with him I. Clinton Kline and J. Howard Rockefeller, for appellee, cited: Gloninger v. Hazard, 42 Pa. 389.

Before BROWN, C.J., MOSCHZISKER, FRAZER, WALLING, SIMPSON and KEPHART, JJ.

OPINION

MR. JUSTICE KEPHART:

The plaintiff filed a bill against the defendants to cancel a lease on the ground of fraud. Edward W. Sleppy, a resident within Northumberland County, had been served as a principal defendant, and B. W. Sleppy, Jr., was served under the Act of 1859. A rule was granted to vacate the latter service for the reason that Edward was not a principal defendant within the county where the writ issued. This rule was discharged and an order made conformable to the prayer of the bill; hence this appeal.

By Section 1 of the Act of April 6, 1859, P.L. 387, extraterritorial service of writs may be had in causes (a) where the subject-matter is within the jurisdiction of the court; (b) where jurisdiction of the subject-matter has been acquired by the service of its process on one or more of the principal defendants within the county in which the writ issues: Eby's App., 70 Pa. 311. The court can acquire jurisdiction in the second class of cases only by a service of the kind therein described. While a bill may aver a state of facts, which prima facia shows a person to be a principal defendant, if, in fact, he is not such defendant and an extraterritorial service is made, which is then challenged by the person served, the status of the "principal defendant," as such, becomes a question of fact for preliminary determination. Should the defendant go to trial after objection made, or if, when made, it is dismissed by the court, and no appeal is taken from the order of dismissal, he cannot preserve his position so that his objection to the jurisdiction on this account may be subsequently passed on by an appellate court; he will be deemed to have waived it: McCullough v. Railway Mail Assn., 225 Pa. 118; Vandersloot v. Pa. W. & P. Co., 259 Pa. 99, 104. It is in part analogous to the service of a writ in any civil action: Park Bros. & Co. v. Oil City Boiler Works, 204 Pa. 453, 458. When B. W. Sleppy made his motion to vacate, Edward had filed his separate answer under oath, denying fraud and secret ownership in the subject-matter of the litigation. It was through the affirmation of these allegations in the bill that he was principal defendant; if they were untrue, he was not a principal defendant, nor a defendant in any sense, and, without more than the averment of the bill and the answer of Edward, extraterritorial service could not be made. This practice is not an effort to contradict, by evidence de hors the record, a return of an officer duly constituted by law, but an attempt to controvert the main facts upon the existence of which only can the writ issue. It challenges the status of parties who seek an extraordinary remedy. The court below held that, for the purpose of the motion to vacate, the allegation of the bill must be taken as true. The motion was in no sense in the nature of a demurrer; the separate answer denied, for the purpose of vacating service, the material and only ground on which the writ could issue.

The court held, substantially, that the lease was procured through the fraudulent acts of B. W. Sleppy and Edward, and as Edward was "severally interested to the extent of one-half" in the illegal gain from the lease he was a principal defendant. A principal defendant is one who has an interest in the controversy presented by the bill, and whose presence is requisite to the complete or partial adjudication of the controversy. "In deciding who ought to be parties, it is necessary to distinguish between active and passive parties; between those who are so necessarily...