Null v. Staiger

• Decision Date: 22 March 1939
• Docket Number: 31
• Citation: 4 A.2d 883,333 Pa. 370
• Parties: Null, Appellant, v. Staiger
• Court: Pennsylvania Supreme Court

4 A.2d 883

333 Pa. 370

Null, Appellant, v. Staiger

No. 31

Supreme Court of Pennsylvania

March 22, 1939

Argued January 16, 1939.

Appeal, No. 31, May T., 1939, from order of C.P. Mifflin Co Aug. T., 1938, No. 49, in case of Thomas E. Null v. William Staiger. Order affirmed.

Petition to set aside service of writ of capias ad respondendum and statement of claim and to quash writ.

The opinion of the Supreme Court states the facts.

Order entered dismissing rule to set aside the return of service and to quash the writ, but discharging defendant on common bail, opinion by UTTLEY, P.J. Plaintiff appealed.

Error assigned was order.

The order of the court below is affirmed.

Albert Houck, with him Harold W. Houck, for appellant.

Robert Siegel, with him Harry L. Siegel, for appellees.

Before SCHAFFER, MAXEY, DREW, LINN, STERN and BARNES, JJ.

OPINION

MR. MAXEY, JUSTICE.

Plaintiff has appealed from an order of the court below refusing to set aside service of a writ of capias ad respondendum and to quash the writ, but discharging the defendant on common bail and thus releasing his surety who entered recognizance for appellant's benefit. The suit is in trespass for appellee's alleged negligence in so operating an automobile in Mifflin County, where appellant resides, as to cause the death of his minor son. Appellant commenced the action on May 19, 1938, by filing an affidavit of cause of action, whereupon a capias ad respondendum issued to the Sheriff of Mifflin County, returnable the fourth Monday in June, 1938 (June 27th), and bail was fixed in the amount of $500. The Sheriff of Mifflin County deputized the Sheriff of Dauphin County, where appellee resides, to serve the writ. The latter served the writ on appellee on May 31st, appellee was taken into custody and bail was furnished. The Sheriff of Mifflin County made return as aforesaid on June 9th and appellant's attorney was notified. On June 28th, the day after the return day of the capias, appellee by petition filed under the Act of March 5, 1925, P.L. 23 (12 PS sections 672-675), obtained a rule on appellant to show cause why the service should not be set aside and the writ quashed.

The court below held that there is no statutory authorization permitting arrest of a defendant on a capias by the sheriff of another county deputized by the sheriff of the county where the writ issued, and consequently that the capias could operate only as a summons in trespass outside the county where issued. Hence it refused to quash the writ, but discharged the bail, the practical result reached being that the suit has been duly instituted and jurisdiction over defendant has been obtained by the court below as by ordinary summons, but appellant has lost his security for the payment of any judgment which may ultimately be recovered against appellee.

Appellant contends that both the arrest of appellee in Dauphin County and his being there held to bail in response to the capias there served on him were authorized by section 1208 of the Motor Vehicle Code, as last amended by the Act of June 22 1931, P.L. 751 (75 PS sec. 738). This section provides that an action for damages arising from the operation of a motor vehicle may be brought in the court of common pleas of the county where the damages were sustained, in which case "service of process . . . may be made by the sheriff of the county where the suit is brought deputizing the sheriff of the county wherein the defendant or his registered agent resides, . . . in like manner as process may now be served in the proper county." Service of process is in general governed by the Act of July 9, 1901, P.L. 614 (12 PS sec. 291 et seq.), the sixth paragraph of which (12 PS sec. 304) provides that a writ of capias ad respondendum may be served by the sheriff of the county in which the writ is issued by arresting the defendant and holding him to bail.

Conceding that the above quoted section of the Motor Vehicle Code is remedial in nature: Wiesheier et al. v. Kessler, 311 Pa. 380, 165 A. 854; we have nevertheless many times held that statutes in derogation of common law principles, and especially those which relate to service of process, are subject to a strict construction: Williams et ux. v. Meredith, 326 Pa. 570, 572, 192 A. 924; Heaney v. Mauch Chunk Borough, 322 Pa. 487, 185 A. 732; Hughes v. Hughes, 306 Pa. 75, 78, 158 A. 874. The act refers merely to "service of process," which phrase prima facie includes every type of original summons without reference to its purpose or method of operation. A capias ad respondendum has a twofold purpose, to wit, (1) to notify the defendant to defend the suit, and (2), to procure his arrest until security for the plaintiff's claim is furnished: 6 C.J.S. 672. Its operative effect goes much beyond that of an ordinary summons, the object of which is to bring the defendant into court and subject him to jurisdiction: 50 C.J. 447. Consequently the issuance and operation of a capias has necessarily been the subject of careful and detailed statutory regulation.

This procedure is regulated by the Act of June 13, 1836, P.L. 568. Section 3 (12 PS sec. 171) provides the form of the writ of capias ad respondendum. The direction to the sheriff (obviously of the county wherein the writ issues) is that the defendant be taken into custody, "if he shall be found in your bailiwick," and that he not be released until he gives bail or makes deposit. The defendant, to secure his release, must give bond "with reasonable sureties, having sufficient estate within the county": sec. 9; 12 PS sec. 181. Manifestly, the reference is to the county where the writ issues, since the act confers no authority upon the sheriff to serve the writ in any other county than his own. The act makes express provision for those special cases wherein it is permissible for the sheriff to serve a writ of process outside his own county: Act of 1836, supra, sections 37, 80, 88. The clear intendment of the act is that the writ of capias, except where otherwise expressly permitted, must be served in the county where it is issued.

Other provisions accord with those just cited and demonstrate that the procedural regulations in the Act of 1836, supra relating to the writ of capias, if carried out as appellant herein contends, would be impracticable in administration. For example, the sheriff taking the bail is made responsible to the plaintiff for the sufficiency of the bond (sec. 16; 12 PS sec. 187), although nowhere in the act is there any provision that the court issuing the writ should have jurisdiction over the sheriff of another county. Difficulties would arise if the court of county "A" should be held to be empowered to subject to the plaintiff's claim the estate of the bail in county "B." Should the defendant refuse to give bail, he is retained in custody; but this must mean in the usual place of imprisonment in the county where arrested. If arrested in another county, the Act of 1836, supra, points no way out of the resulting jurisdictional dilemma. After service of the writ, the officer executing it is charged with the duty of producing the body of the defendant before the court on the return day of the writ: Act of 1836, supra, sec. 18; 12 PS sec. 203. It would be an anomaly to hold that the sheriff of the county where the writ issued can be required to produce the body of the defendant, if the writ was served by deputization of the sheriff of the county where defendant resides: Fackenthall v. Wight, 104...