Rawlings v. Lewert

Newcomb, P. J. The writ is taken on behalf of Emma Lewert, wife of the ither defendant, to test the validity of a judgment entered against both by in alderman. The summons went out against the husband alone and there was no preence of service as to the wife. She appeared neither in person nor otherwise. The only means by which she was made a nominal party was by “amendment” ,t the hearing, on motion of plaintiff’s attorney, adding her name as defend-nt. This was thought by counsel to be authorized by the Act of May 4, 1852, \ L. 574, relating to amendments. This has been a very useful statute; but it is a mistake to suppose that it uthorizes any court, either of record or not of record, to get jurisdiction of he person in that way so as to subject him to definitive judgment. Hence, the judgment entered here was at least voidable as against Mrs. jewert. The only question is whether she has slept on her rights and is now Jarred for not taking timely action after notice brought home to her of the [xistence of the judgment. She sued out this writ on Aug. 3rd, this year. That was three days after udgment on the transcript had been put in execution by fi. fa. For anything re can discover to the contrary, that was the first thing that had happened rhich was well calculated to give her notice. True, the judgment was then an months old and the transcript had been filed on July 13th. That carried otation of an execution issued by the alderman as early as February, which ad been returned nulla bona by his constable. Plaintiff’s counsel lays stress on that fact and contends that appellant must e held to have had notice by reason of the execution in the hands of the con-table; but one is not favorably impressed with that view. In the light of the lerely technical form of return, it would be an arbitrary assumption to hold rat it imports notice to defendant. The sheriff made a levy. It must be resumed he first made demand on defendants, as the law requires. If the unstable made known to appellant that he had a writ, the fact could readily s shown, as the location of his office is well known and is scarcely a hundred ards from the court-house. The earliest notice, therefore, to be now gath-red from the record is that which is normally referable to a fi. fa. in the íeriff’s hands. Admittedly it is so, unless the like effect is to be given to the mstable’s writ of earlier date. [702] Plaintiff’s counsel cites Rakowski v. Rosenthal, 266 Pa. 108, as ruling this case. But on a little attention to the controlling facts it becomes apparem that it is not in point. In the first place, the question was there raised in a collateral issue on ; title founded upon the voidable judgment. But what was more conclusive was the fact of the wife’s assumption of agency to bind the husband at th< outset, which, from start to finish, he had never questioned. The point ther< decided is without material bearing on the question now at stake. Judgment went against this woman gratuitously, and she is entitled ti relief. The exceptions are sustained, and as to Emma Lewert the judgment ii reversed. From "William A. Wilcox, Scranton, Pa.