Lehigh Valley Ins. Co. v. Fuller

• Decision Date: 08 May 1876
• Citation: 81 Pa. 398
• Parties: Lehigh Valley Insurance Co. <I>versus</I> Fuller <I>et al.</I>
• Court: Pennsylvania Supreme Court

Page 398

81 Pa. 398

Lehigh Valley Insurance Co. versus Fuller et al.

Supreme Court of Pennsylvania.

March 16, 1876.

May 8, 1876.

March 16th 1876.

Before AGNEW, C. J., SHARSWOOD, MERCUR, GORDON, PAXSON and WOODWARD, JJ.

Error to the Mayor's Court of the city of Scranton: Of January Term 1876, No. 87 H. C. Hunsberger (with whom was W. H. Gearhart), for plaintiffs in error.—The writ that may be served on an agent in another county is the original writ on the commencement of an action: Act of April 8th 1851, sect. 6, Pamph. L. 354, 1 Br. Purd. 287, pl. 31. An attachment in execution is not the commencement of an action, neither is the scire facias the original writ. It is in substance, if not in form, an execution: Wray v. Tammany, 1 Harris 394; Newlin v. Scott, 2 Casey 102; Kase v. Kase, 10 Id. 131. This process should issue from the court of the county where the garnishee resides: Cowden v. West Branch Bank, 7 W. & S. 432.

D. C. Harrington (with whom was E. N. Willard), for defendants in error.—The Lehigh Valley Insurance Company were doing business in another county of the state, and service on the agent, located in the city of Scranton, was good under the Act of 1852: Landis v. Lyon, 21 P. F. Smith 475; Bancord v. Parker, 15 Id. 336.

Mr. Justice SHARSWOOD delivered the opinion of the court, May 8th 1876.

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 was 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 lawful 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 Commonwealth, 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...