Fitzsimons v. Salomon

Tilghman C. J. The plaintiff in error in this case, has assigned a number of errors. I shall confine my opinion to one, viz. that there were only five days between the issuing and return of the summons. It does not appear, on the face of the summons, at what time it issued, nor does the return of the sheriff shew, on what day it was served. In order to ascertain the matter, the plaintiff in error alleged diminution; and a certiorari having issued from this court, the praecipe has been brought up, by which it is evident, that there were but five days between the issuing and return of the summons. But it is objected by the defendant in error, that we can take [439] no notice of the prcecipe, it being no part of the record. If the day of issuing the summons is a material fact, and there ' is evidence of this fact among the papers filed of record, in the office of the prothonotary of the Court of Common Pleas, it would be extraordinary if this court were debarred from looking at these papers. I considerthepraecipe as part of there-cord. It is the foundation of all the proceedings,beingthe order of the plaintiff’s attorney for issuing the first process.. That it is part of the record, is manifest, from this, that the court may order an amendment of the summons, according to the prcecipe. Some confusion concerning writs of error, has arisen from the different practice in the courts of England and those of this country. In England the writ of error is directed to the Chief Justice alone, and consequently the return is made in the first instance by him only. His clerk has not the custody of the different writs, which have been issued in the course of the cause; and therefore he returns only the plea-roll, consisting of the pleadings, tlje verdict, and the judgment. The plaintiff in error, if he intends to assign error in any matter not appearing in the body of the record .returned by the Chief Justice, is obliged to allege diminution in the particular part, in which the error lies, whereupon a certiorari issues to the officer who has the custody of that part, and on his sending it up, it becomes part of the record in the superior court. Our practice is different. The Chief Justice of this court, or the president of the Court of Common Pleas has not the keeping of any part of the record. The whole is in the custody of the prothonotary of each court. Writs of error, therefore, are not directed to the Chief Justice, or the president, but to the whole court. Consequently there can be no objection to returning the whole record, including the prxcipe and every part of the process, at once. This will prevent the delay, arising from the necessity of issuing a writ of certiorari when diminution is alleged, and I hope that in future, this mode of making the return will be adopted. The next consideration is, whether the want of ten days between the issuing and return of the summons, is error. It is presumed, that the practice of issuing a summons against executors and administrators, has arisen from a very liberal construction of the act of 20th March 1724-5. This act does not expressly extend to executors, but in its terms is confined. [440] to freeholders, who, except in certain cases, are exempted ' from arrests, and are to be proceeded against by summons. In case of nonappearance after summons, provided it has been served on the defendant ten days before the court, the plaintiff is authorised to file a common appearance for the defendant, and proceed to judgment by nil dicit. It was decided by the late Chief justice Shippen, when president of the Court of Common Pleas, in the case of Mary Penrose v. Jonathan Penrose &c. executors of Joseph Penrose, (June 1786) that the plaintiff may still proceed by capias against an executor. But granting, for sake of the argument, that he may proceed by summons at his election, he must take this process subject to the provisions in the act above mentioned; he shall-not be entitled to a judgment by default, unless the summons has been served ten days before the return day. No reason can be assigned for distinguishing the case of an executor from that of a freeholder. It has been said indeed, that a practice has prevailed of taking judgment by default, against executors, after service of the summons four days before the court. But that practice has been by no means general. The court has never sanctioned it by any decision; and to a practice sub silentio, without any law to support it, we ought not to pay much regard. I am of opinion that the judgment is erroneous, and should be reversed. Yeates J. and Brackenridge J. of the same opinion. Judgment reversed.