Fillman's Appeal

Mr. Justice Páxson delivered the opinion of the court, January 16th 1882. The service of the subpoena in this case appears to have been in strict conformity to the Act of Assembly. The libellant was domiciled in the county of Philadelphia and the proceeding for divorce was commenced there. The respondent resided in Montgomery county, and the subpoena was served by the sheriff of that county, who made the following return: “ Served Jacob Fillman, the within named respondent, by giving him April 30th 1881, a true and attested copy of the within writ, and making known unto him the contents thereof.” Upon application to the court below the service was set aside, the learned judge saying: “ The practice has been, ever since the time of J udge King, to get an order from the court of original jurisdiction before the service can be made by the sheriff of another county.” This practice appears to be peculiar to the county of Philadelphia ; at least the contrary prevails in many other counties. This is the first time, so far as I have been able to ascertain, that the question of its validity has been before this court. Undoubtedly a service in accordance therewith would be good. But is a previous order from the court of original jurisdiction essential ? If it is, many divorce proceedings throughout the State where the respondent has not appeared may be invalid. The Act of March 13th 1815, Purdon 510, ph 12, 6 Smith’s Laws 287, prescribes the mode of serving a subposna in divorce. It requires, that it shall be served personally on the said party, wherever found, or that a copy shall be given to him or her fifteen days before the return of 'the same. There is nothing in the Act, either by its express terms or by necessary implica [289] tion, which requires a service by the sheriff. The subpoena is not directed to him, but to the respondent; and it may be served by any one. A service by the sheriff is the better service, and this course is usually followed. In such case the return is more likely to be accurate. In either case due proof is required to be made of the service. Here the sheriff made an affidavit of the manner of service, which is the “ due proof ” referred to in the act. The said act does not require a special authorization from the court of original jurisdiction, nor has any reason been shown why such order should be obtained. It has long been the practice in this state for a defendant to move to set aside a sheriff’s return, where he believes the writ to have been defectively served : Bujac v. Morgan, 3 Yeates 258; Kleckner v. County of Lehigh, 6 Wharton 66; Winrow v. Raymond, 4 Barr 501. The respondent was therefore entitled to take the rule, but it was error in the court below to make it absolute. The order setting aside the service of the subpoena is reversed at the costs of the appellee.