Sprowls v. Ealy

Gibson, J., On behalf of the defendant and garnishee a writ of certiorari was issued on May 28, 1934, to which the justice of the peace made return on June 4, 1934. The defendant and the garnishee claimed that the transcript filed with the return did not correspond with a transcript previously given to them, and that there was a diminution of record. Following this, a hearing was held September 8, 1934, at which testimony was taken for that purpose. An examination of the testimony does not show that there is any diminution of the record as shown by the transcript filed with the return. Among the papers- attached to the return we do not find the original summons and the original return of the constable thereon. It is set forth in the transcript that the summons was issued February 1, 1934, returnable to February 9,1934. It also sets forth that this summons was served on the defendant by handing him an attested copy thereof in East Finley Township, Washington County, Pa., at his dwelling house; that the hearing was held on February 9, 1934; that the plaintiff was sworn and that he made certain claims; that defendant did not appear and judgment was entered in favor of the — 379 — plaintiff and against Wilden Ealy, the defendant, in the sum of $98.60, to which is added the words “by default”. The fact that the transcript sets forth that the plaintiff was sworn and testified, shows that the judgment could not have been in default of an appearance of defendant. To this portion of the transcript certain exceptions have been filed, attacking its regularity. It has been held in numerous cases that a writ of certiorari brings up for review nothing but the record and every presumption consistent with the record is made in favor of the regularity of the proceeding: Ristau et ux. v. Crew Levick Co., 109 Pa. Superior Ct. 357; Gibbs & Co. v. Alberti, 4 Yeates 373; Bradley v. Flowers, 4 Yeates 436; Cope v. Buck, 3 Lanc. 353; Evans v. Brobst, 5 Dist. R. 30; Kerr v. Lowry, 2 Dist. R. 371; Cooke v. Shoemaker, 17 Pa. C. C. 641; Guth v. Stein, 29 Dist R. 669; Snyder v. Carfrey, 54 Pa. 90. In the last case cited the Supreme Court said (p. 93): “Very few aldermen and justices of the peace can make up records upon penal statutes which can withstand the criticisms of a certiorari, but in committing the rights of landlords and tenants to the unaided'judgment of such a magistracy, the legislature meant that superior courts should exact no unattainable precision of procedure, but only such substantial compliance with the letter and spirit of the statute as would generally be within the competence of the magistrates.” Considering the original proceeding here, it appears the summons was returnable within the proper time, it was served on the defendant, the hearing was held on the day appointed, the plaintiff was sworn, and the judgment was entered after the hearing. It is complained that the return of the constable, as set forth in the transcript, does not show upon what date service was made. This service was required to be made at least four days before the time of hearing (Act of March 20, 1810, 5 Sm. L. 161, sec. 2, 42 PS §422). On the hearing held with reference to the diminution of record the defendant of — 380 — f ered no evidence that this was not done; and under the authorities above referred to, we should presume that the service was made at the proper time, notwithstanding the failure to insert the date of such service. . It will be noted that judgment was entered on February 9, 1934. The certiorari was not issued until May 28, 1934, more than 20 days thereafter. Under the Act of March 20, 1810, 5 Sm. L. 161, see. 21, 42 PS §951, it is provided that no judgment shall be set aside in pursuance of a writ of certiorari unless the same is issued within 20 days after judgment was rendered. Therefore this writ comes too late, where its purpose is to set aside the original judgment. We recognize that there are a large number of cases holding that this limitation of 20 days does not apply where jurisdiction is involved, or where the judgment is void ab initio by reason of lack of jurisdiction of the parties or the subject matter being apparent on the face of the record, or where there are no witnesses sworn, no service upon the defendant, and in such like matters. In this case the record affirmatively shows that there was service within the county, and that the defendant had actual notice of the proceedings and the time at which the hearing would be held and judgment might be rendered; that the magistrate had jurisdiction of the proceeding; and it was the duty of the defendant, if he was interested, to ascertain the judgment entered and cause his writ of certiorari to be issued within 20 days after the entry of such judgment. We therefore hold that the judgment in favor of Harry V. Sprowls against Wilden Ealy, entered by the justice of the peace on February 9, 1934, for $98.60, is a valid judgment, and the exceptions, insofar as they refer to this judgment, should be dismissed. The defendant and garnishee complain that the transcript filed with the return of the certiorari does not correspond with the transcript furnished to them at their request before the certiorari was issued. This case must be decided upon the record as returned by the justice, although it may not correspond with the transcript fur — 381 — nished before the writ was issued, since it is the duty of the justice to make his record a true statement of the proceedings before him, and he may amend his record to correspond to the facts even after he has given a transcript to the parties: Moore v. Messersmith, 12 Pa. C. C. 575; Ristau et ux. v. Crew Levick Co., 109 Pa. Superior Ct. 357. The proceeding continues further, as appears by the transcript, in that execution was issued on March 5, 1934, and on the following day was returned “No goods”. An attachment was issued March 15, 1934, returnable to March 21,1934. The return of the constable shows service on the same day the writ issued, on P. W. Kimmel, attaching a note of Wilden Ealy, the defendant, in the hands of P. W. Kimmel. Here the proceeding, so far as the transcript is concerned, ends. Attached to the return of the certiorari is the original attachment and what appears to be an execution issued against the garnishee, and another execution issued May 16, 1934, under which certain property was levied upon, which apparently is the property of the garnishee. It does not appear, either on the transcript or the various papers attached, that service of the attachment was made on Wilden Ealy, the defendant, or that any interrogatories were ever served on the garnishee or answered by him,, the portion of the attachment writ having reference to interrogatories being entirely blank. The exceptions also extend to the attachment proceeding. The transcript as returned shows only the issuance of the attachment and the service thereof, and in considering the exceptions we will confine ourselves to those matters which appear on the transcript, which fall into two classes, viz.: (1) As to the sufficiency of the attachment issued; and (2) the service thereof. The Act of April 15, 1845, P. L. 459, extends the jurisdiction of aldermen to the issuing, service, trial, judgment, and execution of process required in execution attachments, this jurisdiction having previously been given — 382 — to courts of common pleas by the Act of June 16, 1836, P. L. 755, sec. 35, 12 PS §2265. Section 3 of the Act of 1845, as amended by the Act of June 29, 1923, P. L. 934, regulated the issuance and service of the writ of attachment and provided that the writ of attachment might issue returnable not less than four nor more than eight days, and should be served in the manner provided for the service of a summons upon the debtor or any other person having property of the defendant in his hands made liable to the attachment, “and on or before the return day of said writ, the plaintiff may file with the magistrate interrogatories in writing, addressed to the person summoned as garnishee, in regard to the property and effects of the defendant alleged to be in his hands at the time of the service of said writ; a copy of the same, with a rule to answer, shall be served upon said garnishee personally, to answer under oath or affirmation all such interrogatories as the magistrate shall deem proper and pertinent, within eight days after the same shall be served.” While the transcript shows that the writ was issued returnable within the required time, it says nothing whatever of any interrogatories filed by the plaintiff or any service thereof. Notwithstanding this, the transcript sets forth: “Defendants in default.” Also, the original attachment accompanying the return of the certiorari shows that portion thereof having reference to the rule and the interrogatories to be blank, and we believe we correctly assume that no interrogatories were filed, no rule to answer was issued, and neither was served on the garnishee. Consequently there could be no default of the garnishee and no judgment could be entered against him until such interrogatories had been filed and rule to answer them issued, and both served on the garnishee, and he had neglected to answer the interrogatories within the eight days provided by section 4 of the Act of 1845. The provisions of the act regulating attachments have not been substantially followed, and as — 383 — a result no judgment could be entered upon the attachment. As to the service of the attachment, it appears by the transcript that service was made “personally on said P. W. Kimmel”. There is no service whatever shown on the defendant, but only on the garnishee. The Act of 1845, sec. 3, provides that the writ of attachment shall be served as a summons upon the debtor, depository, bailee, pawnee, etc. However, in the body of this section, with reference to the interrogatories, they are to be “in regard to the property and effects of the defendant alleged to be in- his hands”; and it would appear that the “debtor” upon whom service is to be made under this section is the debtor to the defendant, and nowhere in this section is there an express requirement that the attachment shall be served on the defendant. The Act of 1836, authorizing the issuance of attachments by the court of common pleas (which power to a limited extent was granted to aldermen and justices of the peace by the Act of 1845), required that the execution attachment be served “upon the defendant in such judgment”. The jurisdiction of aldermen and justices of the peace having been extended by a reference to the Act of 1836 and particularly to sections 35 and 36, it has been held that the requirement of service on the defendant was a requirement extended to actions before aldermen and justices of the peace, notwithstanding that by the Act of 1845 they were not expressly required to serve the writ on the defendant. Also, in the orderly administration of justice, it is proper that the defendant have notice of each step in the proceeding, where his property has been seized, so that he may be heard and given an opportunity to pay the judgment himself, or perhaps show that it has already been paid or is not properly collectible. That it was intended that he should have notice and an opportunity to defend is apparent from the fact that section 6 of the Act of 1845 gives him the right to appeal from the judg — 384 — ment of the justice, and he could not well exercise this right if he had no notice of the pendency of the attachment proceedings. The practice has long been recognized that the defendant or real debtor in an attachment proceeding must be served: Binns’ Justice (13th ed.), 141; Freeland v. Elsworth et al., 3 Luz. L. R. 45; Evans, Garnishee, v. Zane, 13 Montg. 47; Henaughan v. Golden, 4 Luz. L. R. Rep. 195; Witich et al. v. Michael, 4 Luz. L. R. Rep. 144. In accordance with these decisions, it appearing that no service was made upon the defendant, it necessarily follows that the service of the attachment was not sufficient and any attempted judgment entered upon the attachment and any execution thereon are void. And now, February 16, 1935, the judgment entered by G. W. Tilton, justice of the peace, in favor of Harry V. Sprowls, plaintiff, and against Wilden Ealy, defendant, on February 9, 1934, in the sum of $98.60, is sustained, and exceptions to so much of the record as refers to said judgment are hereby overruled; and exceptions to the service of the writ of attachment issued by the said justice on March 15, 1934, and as to any judgment or subsequent proceedings thereon, are hereby sustained, and the proceedings subsequent to the issuance of said writ of attachment are hereby set aside.