Jones v. Orum

The opinion of the court was delivered by Sergeant J. Several errors in the proceedings below have been assigned in this court, which result in the question, whether the award against all the defendants was valid. The plaintiff proceeded originally by capias ad respondendum indorsed “ no bail required,” but it was not served according to the rule of court, the defendants not having subscribed a note in writing, empowering the prothonotary to enter their appearance, and therefore the return of the sheriff of “ cepi corpus, and the defendants discharged on common bail,” was nugatory, and did not authorize an appearance to be entered. The court below so decided, when they ordered the rule to plead and judgment to be struck off, and we think rightly. The sheriff was bound either to take such a note in writing, as would justify an appearance to be entered, or to hold the defendants to special bail. Barnard v. Field, 1 Dall. 348. 3 Binn. 286. It is suggested that such a note may have been signed, and afterwards lost. If this were so, the fact might have been shown to the court helow, on the hearing, and if satisfactorily established, would no doubt have produced a different result. After this order of the court below, the plaintiffs entered a rule of [254] reference under the arbitration act, and caused notices to be served on the defendants, and it is insisted now, on the authority of Flanegan v. Negley, and similar cases, that a suit having been once entered on the docket, the rule of reference was regular, though upwards of ten years had elapsed after the writ was first taken out, and returned without being duly served, and not a single step had been taken by the plaintiffs during that period, to continue the action. If this were so, it would certainly present an extraordinary state of things in the management of suits. A writ might be taken out, and never served, and the plaintiff lie by nearly double the period imposed by the statute of limitations, and then the plaintiff treat the action as pending, and date its existence from the first writ. This would introduce all the mischiefs the statute of limitations was intended to guard against, and expose a party to the necessity of contesting the validity of a claim, after more than six years had elapsed, and when his vouchers were lost and witnesses dead. Even where the replication of a writ taken out and continuances since, is allowed to avoid the plea of the statute of limitations, no case has gone to the extent of time, which had passed in this case. In Schlosser v. Lesher, 1 Dall. 415, the Court of Common Pleas, Shippen, president, considered a period of two years and a half from the original summons not too long, and a case is there referred to in 1 Sid. 53, where Twisden, Justice, says he had known a suit continued by latitat for' five years before the bill filed, and Herne, secondary, said a latitat may be continued seven years. If even the latter time were adopted and the continuances here are a matter of form, it is still far short of the interval passed over. If, therefore, the, case be considered with a view to the principles applicable to the statute of limitations, and the doctrine of entering continuances, upwards of ten years is too long a period, and^the action must be considered as discontinued. But though some analogy exists to cases under the statute of limitations, there are material differences between the common law principles applicable to that statute, and those which regulate the right of arbitration, under the act of 1810, and its amendment of the 28th March, 1820, and this case depends on the true construction of these acts, rather than on corresponding principles in other matters, existing at the common law. The arbitration act of 20th March, 1810, had not been long in use, before some of its features were found in practice, to present much inconvenience and incongruity. In the cases of Hertzog v. Ellis, 3 Binn. 209. Flanegan v. Negley, 3 Serg. & Rawle, 498. Sharp v. Kilgore, 3 Serg. & Rawle, 387. Brown v. Scheaffer, cited ib., the court, under the authority in the first section, to arbitrate “at any time after the entry of the suit,” felt themselves compelled to decide, that a rule of reference might be taken out before the return day of the writ, whether a capias or summons, even though [255] the writ were never served; so that there might bejudgmenfand execution before the return day of the original process, and legal proceedings were carried on against a defendant, in a suit in which he never was served with a writ, and was not, and might never be regularly bound to appear in court; So also, the act not having required the plaintiff to file a declaration or statement, it was held that it was not necessary; in consequence of which it was often difficult to discover after the award, in what cause of action it had been made, and in Bazire v. Barry, 3 Serg. & Rawle, 461, this court, on a question of costs, was obliged to resort to parol evidence, to ascertain the amount of the plaintiff’s claim before the arbitrators. These inconveniences induced this court, in Bazire v. Barry, in Flanegan v. Negley and other cases, about the same period, to point out in forcible language, the necessity of some legislative amendment ; and on the 28th March, 1820, an act was passed, which seems. to have been intended to effect the desired object. It declares that, “ no rule of arbitration shall be entered or taken out, until after the first day of the term, after the suit or action may have been commenced, nor until after a declaration or statement of the cause of action shall have been filed,”- Now, by the first day of the term, the plaintiff may compel a return of his process, and ascertain definitively, whether it has been served or not; and if the process has not been served, and the defendant is not in court, nor is bound to be, it seems to me, the legislature intended the plaintiff should not be permitted to arbitrate; otherwise the act of 1820, goes but a little way to correct the mischiefs formerly existing, under the act of 1810, so much complained of. All the decisions relied on were prior to the act of 1820; none have occurred since, to sanction the former practice, nor could they, I apprehend, without marring in a great measure the principal design of the act of 1820, which was to restore the symmetry of the law, by requiring a permanent declaration in writing of the plaintiff’s cause of action, before it went to a tribunal to be decided, and a service of the process, before the defendant could be considered as liable to legal proceedings in the suit, commenced by that process, and deriving its legal existence from it. At all events, I have no doubt, that if a plaintiff suffered ten years or more to elapse after a writ returned without being served, and without taking any step in the cause, the suit must be considered as discontinued; and when a suit is discontinued, the plaintiff cannot enter a rule of reference. It is further contended by the plaintiff below, that if there were an irregularity in the proceedings, it was waived by the general appearance entered by Mr. Tilghman for all the defendants, on the 9th of April, 1831, after the rule of reference was entered, but before the appointment of arbitrators. And if this appearance had so remained uncorrected, though at the instance of one defendant only, and under circumstances of considerable suspicion, as to the motive [256] of that defendant, in instructing Mr. Tilghman so to act, it might perhaps have the effect contended for, without meaning however to express any opinion as to the power of one partner to authorize an appearance for another, either before or after dissolution, upon which some arguments and authorities have been adduced. But this appearance, though general in the first instance, was amended by the court below, and stands now on the record before us, under that amendment as a special appearance for S. Jones only, as of the date of the original appearance. This the court below, in their legal discretion, had power to do, and we must take it as it stands in the record, presuming they had good reasons for what they did. Kennedy v. Wachsmuth, 12 Serg. & Rawle, 171. It is however sufficiently evident, that if the plaintiff was, for a short period, justified in considering Mr. Tilghman as appearing for all the defendants, measures were speedily taken to apprise him of the mistake. Two days after the appointment of arbitrators by the plaintiff’s attorney and the prothonotary, a motion was made to strike off the rule of arbitration; before the arbitrators, Mr. Tilghman appeared as attorney for S. Jones only; and the plaintiff seems to have proceeded in the arbitration on the strength of his service of the rule, not on the general appearance of Mr. Tilghman, which he was then aware was withdrawn. If an attorney has erroneously appeared for a party, I know no reason why the mistake may not be corrected, provided it be done in due time, before any step taken in pursuance of it, and without occasioning loss or prejudice to the other party. See Haslett v. Street, 2 M'Cord, 311. I do not perceive in this case, that the plaintiff in his-proceedings relied on this general appearance, or that it was not corrected in proper season. I am, therefore, of opinion, that the award was improperly made against all the defendants, and that the judgment thereon be reversed. Judgment reversed.