Sweeney v. Girolo

• Decision Date: 08 May 1893
• Docket Number: 56
• Citation: 154 Pa. 609,26 A. 600
• Parties: Sweeney et al., Appellants, v. Girolo
• Court: Pennsylvania Supreme Court

26 A. 600

154 Pa. 609

Sweeney et al., Appellants, v. Girolo

No. 56

Supreme Court of Pennsylvania

May 8, 1893

Argued April 18, 1893

Appeal, No. 56, Jan. T., 1893, by plaintiff, E. P. Sweeney and G. W. Hoover, trading as the Curwensville Stone Co., from judgment of C.P. Clearfield Co., Sept. T., 1890, No. 299, on verdict for defendant, Andrew Girolo.

Replevin for goods bought under an alleged invalid constable's sale.

The facts appear by the opinion of the Supreme Court.

Plaintiffs' points were among others as follows:

"1. The judgments vs. E. P. Sweeney upon which the executions were issued and under which the constable made the sale of the property, being void for want of jurisdiction, there was no authority to make said sale, and therefore no title passed to Andrew Girolo by virtue of said constable's sale." Refused. [5]

2. As stated in opinion of Supreme Court. [6]

The court directed a verdict for defendant.

Verdict and judgment for defendant. Plaintiff appealed.

Errors assigned were (5, 6) instructions, quoting them.

Judgment reversed and a venire facias de novo awarded.

Roland D. Swoope, for appellants. -- The judgment of justice of the peace is not within the rules of evidence that apply to the proceedings of superior courts, and no presumptions are indulged in in its support: Crepps v. Durden, 1 Sm L.C. 1079; Magee v. Scott, 32 Pa. 539.

The service of process was insufficient: Truitt Bros. & Co. v. Ludwig, 25 Pa. 148; Fisher v. Longnecker, 8 Pa. 410; Wall v. Wall, 123 Pa. 553; Davis v. Davis, 115 Pa. 261; Graver v. Fehr, 89 Pa. 460; Buchanan v. Specht, 1 Phila. 252; Berrill v. Flynn, 8 Phila. 239; Shourds v. Way, 8 Phila. 301; City v. Cathcart, 10 Phila. 103; Wharton v. Rosengarten, 3 W.N. 258; McKee v. McKee, 14 Pa. 231; Torrance v. Torrance, 53 Pa. 505; Shryock 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, 123 Pa. 438.

Want of jurisdiction may be taken advantage of at any stage of the proceedings: Stearly's Ap., 3 Gr., Pa. 270; Hill v. Twp., 129 Pa. 525; Gates v. Bloom, 1 Adv. R. 663 ; Wall v. Wall, 123 Pa. 553.

Even the act of 1705 will not protect a bona fide purchaser of land where the judgment is void: Shannon v. Newton, 132 Pa. 375; Burd v. Dansdale, 2 Bin. 80; Gardner v. Sisk, 54 Pa. 506; Zuver v. Clark, 104 Pa. 227.

If the judgment is void the title to the property continues the same as if there had been no sale: Hecker v. Haak, 88 Pa. 238; Shields v. Miltenberger, 14 Pa. 76; Camp v. Wood, 10 Watts, 118; O'Donnell v. Mullin, 27 Pa. 199; Herman on Executions, 419; Vansyckel's Ap., 13 Pa. 128; Camp v. Wood, 10 Watts, 118; Fowler v. Eddy, 110 Pa. 117; Wall v. Wall, 123 Pa. 553; Sharpless v. Lansing & Webb, 1 Chester Co. R. 562; Briscoe v. Stephens, 2 Bing. 213; Thompson v. Whitman, 18 Wal. 457; Lincoln v. Tower, 2 McLean, 473; Moore v. Edgefield, 32 F. 498; Gage v. Hill, 43 Barb. 44; Cavanaugh v. Smith, 84 Ind. 380; Frankel v. Satterfield, 19 A. R. 898; Gould v. McFall, 111 Pa. 66; Coleman's Ap., 75 Pa. 441.

The court below erred in not submitting to the jury under proper instructions the question as to the ownership of the property sold by the constable upon the executions against E. P. Sweeney: Callender v. Robinson, 96 Pa. 454.

Allison O. Smith and Smith V. Wilson, for appellee. -- The judgment under which the goods were sold cannot be attacked in this proceeding: Baird v. Campbell, 4 W. & S. 191; Tarbox v. Hayes, 6 Watts, 398; Billings v. Russell, 23 Pa. 189; Sloan v. McKinstry, 18 Pa. 121; McDonald v. Simcox, 98 Pa. 623; Kramer v. Wellendorf, 129 Pa. 547.

Wall v. Wall, 123 Pa. 553, was not a collateral proceeding, and the language of the court was perhaps a mere dictum. Neither was Pantall v. Dickey, 123 Pa. 438; and the latter could have no weight here, because there is nothing on the record of the justice to show that Sweeney was a nonresident, and the court has not decided by any opinion that he so found.

Replevin is an action ex delicto. All the interest of E. P. Sweeney was sold out, even admitting for the sake of the argument merely that George W. Hoover's interest was not. How could G. W. Hoover recover in an action ex delicto by joining E. P. Sweeney's name with his? A joint action, such as this, cannot be maintained when some of the plaintiffs are shown to have no right to recover: McDonald v. Simcox, 98 Pa. 623.

This partnership, if it ever existed prior to the time it was chartered, was never registered in the prothonotary's office, giving the names of the partners, as required under the terms of the act of April 14, 1851, Purd 1297, and E. P. Sweeney having the ostensible ownership, so far as the testimony of this case is concerned, the law will not permit Hoover to turn up now and say, "I am the partner of this man; this was my property." It would be permitting the secret contract of the plaintiffs to work a fraud on innocent and confiding creditors.

The allegation that the case of Callender v. Robinson, 96 Pa. 459, is not in point, is not sustained by the testimony, the case at bar being in its facts almost identical with this, so far as the public was concerned.

Before STERRETT, C.J., GREEN, MITCHELL, DEAN and THOMPSON, JJ.

OPINION

MR. THOMPSON, JUSTICE

The appellants were dealing in stone taken from their quarry. Instead of quarrying the stone themselves, they entered into an agreement with Michael Saturday, under which he was to operate it, dress and load the stone upon the cars for so much per cubic foot, and hire and pay for the labor. On June 21, 1890, summonses were issued in three actions by a justice of the peace against E. P. Sweeney, one of the appellants, and by default judgment was entered, executions were issued upon them and the property in question was sold to the appellee. Thereupon the appellants issued this writ of replevin. The docket of the justice of the peace sets forth in regard to the service of these summonses "served by leaving copy at place of business." The return of the constable upon them is "served by copy."

The two principal questions raised by the assignments of error are, (1) whether the judgments were voidable or absolutely void; and (2) whether the property of the partnership under the circumstances in this case could be sold upon an execution against a member of it.

If the judgments were voidable, until avoided, execution and sale under them would without doubt pass title to the purchaser at such sale. A sale under a judgment absolutely void would pass no title. Such a judgment is in effect no judgment. It has no efficacy and creates no rights. These judgments if void must be so from want of jurisdiction and such jurisdiction is based upon either the subject-matter or the person of the defendant. It may spring from one or both. The contention here is that all the proceedings were coram non judice, because the docket of the justice in stating "served by leaving a copy at place of business" shows no service upon the defendant. The act of assembly provides for service either upon defendant personally, or by leaving a copy at his dwelling house with an adult member of his family, or an adult member of the family with whom he boards. A service by leaving it at his place of business is not a compliance with this act. In Winrow v. Raymond, 4 Pa. 501, it was held that the service of a copy at the countinghouse of defendant, with his agent or clerk, was an illegal service. While the justice's docket shows this memorandum, the summonses themselves show the return upon them to be "served by copy." There is nothing to show by it that the service of the copy was not made in the manner as required by the act of assembly, and the presumption is that the service was so made. In Sloan v. McKinstry, 18 Pa. St. R. 121, the summons was "returned on oath," and it was held that such a return was irregular only and rendered the judgment not void but voidable. While it is manifest that the return in this case should have been more specific, yet the failure to make it so is but an irregularity. Returns of this character have been held sufficient to sustain judgments. They may render them voidable but not necessarily void. In Baird v. Campbell, 4 W. & S. 191, the return was "served." It was alleged in effect there was no service on defendant, yet it was held there the judgment was valid and could not be attacked collaterally. In Tarbox v. Hayes, 6 Watts, 398, the return was "served at a boarding house where defendant had been boarding previously," and it was held the judgment was a valid one. In McDonald v. Simcox, 98 Pa. 623, it was contended that the judgment was void, the summons not having been made returnable not more than eight days nor less than five days from the date thereof, as required by the act of 1810. It was there said: "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 there 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...