Bennethum v. Bowers

[336] Opinion, Mb. Chief Justice Paxson : We are of opinion that the learned judge below erred in setting aside the service of the writ. The return was as follows : “ Served the within writ of ejectment by giving a true and attested copy thereof to Levi Wesley Bowers, defendant, personally, and making known to him the contents thereof, on December 27, 1888. “ Cyrus Bollinger “ Served as above. “So answers “ George B. Schaeeeeb, . “ Sheriff.” There was also an affidavit of service, presumably by Bollinger. The objection of the court below was twofold:- (a) That the return does not show that Mr. Bollinger was a deputy-sheriff ; and (5) that the copy served was not attested. In regard to the first objection, it is sufficient to say that the adoption by the sheriff of Bollinger’s act sufficiently indicates the authority under which the latter acted. He thus recognized him as his deputy, and it is immaterial that he omitted to add the words “ deputy-sheriff.” It was said by' this court in Mentz v. Hamman, 5 Wh. 150, in regard to the return of the sheriff to a writ of execution: “ It is of no manner of consequence on whose information he chooses to relj for the truth of his return.” If Mr. Bollinger’s name were stricken out, it would still be a good return, for the sheriff himself returns the writ served, upon his official responsibility. But, as before observed, there is a distinct recognition by the sheriff of Bollinger’s authority, and the defendant cannot be allowed to gainsay it. The second reason, (5) that the copy served was not a true and attested copy, is equally without merit. The sheriff returns that it was a true and attested copy. If this return was false, the sheriff would be liable therefor; but, being in proper form, it is conclusive between the parties, and cannot be contradicted aliunde. The rule is thus stated in Ben wood IronWorks v. Hutchinson, 101 Pa. 859: “ Where the return on its face does not show a legal service of the writ, the service may [337] be set aside. As tbe return must be considered as conclusive, as between tbe parties to the action, it is error to set aside the service upon extraneous evidence. Affidavits and depositions are no parts of the record:” citing Kleckner v. Lehigh Co., 6 Wh. 66, where it was held that the court below erred in setting aside the service of the writ upon extraneous evidence. The question, whether an order of the court below setting aside the service of a writ was reviewable here was not raised, and is not decided. It may be more than doubted, when the court refuses to set aside the service, for in such case it is clearly an interlocutory order. The setting aside of service does not set aside the writ; that remains, and an alias can issue thereon; thus stopping the running of the statute. There may be cases where, from the difficulty of making a second service, great hardship might result to a plaintiff from having the service of his writ set aside. It is difficult to see how such hardship could arise in an action of ejectment, where, if the defendant evades service of the alias writ, it can be served on his tenant in possession; and, if there is no tenant in possession, the plaintiff can enter without an ejectment. In this ease, an alias writ would have been a speedier and less expensive remedy than this appeal. There is much reason for holding that an order setting aside the service is but interlocutory, and not a final judgment; but, in view of the fact that a number of writs of error have come up, in which the action of the courts has been reviewed in similar cases, and that the point was not raised and argued in this case, we will decide it, reserving, however, the right to pass upon this important question of practice when it is squarely raised. The order setting aside the service of the writ is reversed, and a procedendo awarded.