Fisher v. Longnecker

• Decision Date: 28 June 1848
• Citation: 8 Pa. 410
• Parties: FISHER <I>v.</I> LONGNECKER.
• Court: Pennsylvania Supreme Court

Page 410

8 Pa. 410

FISHER v. LONGNECKER.

Supreme Court of Pennsylvania.

June 28, 1848.

IN error from the Common Pleas of Dauphin county.

H. Alricks, for plaintiff in error.

McCormick, contrà.

June 28. BELL, J.

It is conceded the action instituted by Justice Walborn, was for the same cause as that sued upon before Justice Lynch. The question then is, whether the judgment rendered by the former justice is conclusive of the controversy between the parties. At the time of its rendition the second suit was pending, and it appears to have been brought to the notice of the second justice by a certified transcript of the first record, though not formally pleaded in bar. This was first done when the appeal was called for trial in the Court of Common Pleas. But was not the whole proceeding before Justice Walborn coram non judice and void, after the return of the summons issued by him? The act of 1810 points out, with much particularity, the mode and manner of proceeding by a justice of the peace, in causes instituted before him. The action is to be commenced by writ of summons or capias. If the former be the process used, it is to express the day upon which the defendant is commanded to appear, and it is to be legally served upon him, without which the justice cannot proceed a step. If it be not served before the return day, it is functus officii, and should the plaintiff wish to prosecute his suit, he must sue out a new writ. There is no means provided by which he can compel an appearance to the first, when it remains unserved on the defendant, though, questionless, the latter may appear voluntarily even after the return day, and the former may accept this appearance, and proceed to a determination of the cause. But was there not, in this instance, a substantial discontinuance of the first action? As appears by the transcript given in evidence, the plaintiff directed the constable not to serve the writ upon the defendant. The entry is, "Constable returned the summons that the plaintiff did not want it served now. Continued until further orders." This direction was given some time prior to the 10th of December, 1843, the return day of the writ, and not having been retracted, as I conceive, put an end to the suit, and of course to the justice's power over the subject-matter of it. Without a return of the summons "served," he had no hold over the defendant; after an actual interference to bar the operation of the writ, which was in effect a discontinuance...