Watts & Parker v. Fox

The opinion of the court was delivered, by Read, J. — The leased premises were a theatre, and not a dwelling-house, nor did the defendant live in it, but it was occupied by his agent, William J. Gilmore, and the return of the sheriff shows that in obedience to the writ issued by the two aldermen he summoned the defendant to be and appear at the time as within commanded by the writ, by leaving a true and attested copy of the within writ on the premises within described, with William J. Gilmore, his agent, and making known to him the contents thereof, July 20th 1869. The exception sustained by the court below, was that the defendant was not summoned as required by law, and not that he had not actual notice of it and of the proceedings. The Act of 21st March 1772, in the 12th section says, “and also to summon the lessee, or other person claiming or coming into possession under the said lessee or tenant,” and it therefore appears to be the object of the law, that the service should be made in such a manner, that the person in actual possession of the demised premises, should have notice of the summons. At the time of the passage of this act, personal service of the ordinary summons was not necessary, and the sheriff might leave “ notice in writing of such summons at the house of the defendant, in the presence of one or more of his family or neighbors, signifying that the defendant should be and appear, according to the contents of such summons.” From the language of the act, service on the demised premises upon the person in possession seems to be contemplated, and therefore the service of the summons upon the person in possession claiming under the lessee as his agent, is a sufficient service in the present case. The objection was purely technical, the defendant no doubt having actual notice of all the proceedings — although voluntarily abstaining from appearing and taking defence. There is nothing in the 1st, 2d and 4th exceptions, but there is in the 5th exception, and the plaintiffs have agreed to withdraw all that portion of their claims which relates to the damages, and to consent to a reversal of so much of the judgment as relates to the same, it is therefore ordered that the judgment of the Court of Common Pleas be reversed, and that so much of the judgment [339] of the aldermen as directs that restitution of the said demised premises be made to the said Frederick Watts and Isaac Brown Parker be affirmed, and the residue of said judgment is reversed. Restitution to be made forthwith.