Ralston's Appeal , 1880 Pa. LEXIS 119 ( 1880 )

The judgment of the Supreme Court was entered February 16th 1880,

Per Curiam.

We know no authority for a sheriff in this state to depute a sheriff in another state to execute a writ in the bailiwick of the latter, so as to give to it the effect of a personal service. A service thus made, cannot have the effect of a legal service made within this state: Coleman’s Appeal, 25 P. F. Smith 441.

It was by such an invalid service, the appellant claims to have brought the appellee within the jurisdiction of the court; and then, mostly on his own evidence, and without any appearance of the appellee, he sought to procure a decree of divorce. This cannot be done. Still further, an examination of the evidence shows, the court was right in refusing the decree prayed for oh the merits of the case. During all the time the appellee was separated from her husband, his evidence shows that he made her an allowance, and remitted her not less than $40 a month. This fails to establish that wilful and malicious desertion and absence contemplated bv the Act of Assembly.

Decree affirmed, and appeal dismissed at the costs of the ■ appellant. .

A motion was subsequently made for a re-argument, which the court refused in an opinion as follows, delivered March 29th 1880, by Merour, J.

In this application for a re-argument it is assumed that we did not give due weight to the Act of 13th March 1815, under which the appellant claims to have made a service. It declares “ upon due proof at the return of the said subpoena that the same shall have been served personally on the said party wherever found, or that a copy had been given to him or her fifteen days before the return of the same,” a divorce may be decreed. It is contended in case the libellee in divorce is not found within the bailiwick of the sheriff, the latter may, under this act, depute some person to make the service in another state. If a legal service could thus be made in Delaware it can be in California. Such cannot be a true construction of the statute. The language “wherever found” cannot be so construed as to give to a court of this state extraterritorial power to bring within its jurisdiction the person of a citizen and resident of another state. The property found within this state of a non-resident may be reached and charged and sold in the enforcement of a debt resting on a contract without any personal service on the debtor. In the case of an ordinary debt the person of a non-resident defendant not found within the state cannot be reached by any process issued by a court of common law. In cases where the language of the statute would seem to give extra-territorial power this court has denied its exercise. Thus the 16th section of the Act of 13th June 1836, relating to the removal of paupers, authorizes them to be removed “ at the expense of the district to the city, district or place where he was last legally settled, whether in or out of Pennsylvania.” It has, however, been held the provision for a removal into another state is of no force or effect: Overseers of Limestone v. Overseers of Chilisquaque, 6 Norris 294. The first section of the Act of 6th April 1859, authorizes any court of this Commonwealth having equity jurisdiction, in any suit in equity instituted therein concerning property within the jurisdiction of the said court, to order and direct that any subpoena or other process to be had in such suit be served on any defendant therein “ then residing or being out of the jurisdiction of said court wherever he, she or they may reside or be found.” It further provides for the proof of service both within and without the limits of the United States. It was held in Coleman’s Appeal, 25 P. F. Smith 442, that process thus issued in this state and served in another state on a resident thereof could not give jurisdiction of the person thus served. The Act of 1815 is less explicit than the two we have cited of an intention to extend the jurisdiction of a state official or tribunal beyond the limits of our state. The service of a subpoena in divorce thus made in another state on a resident thereof for the purpose of giving jurisdiction of his person is not authorized by any law. If any such practice has prevailed it is a vicious one and should be abolished. The motion for a re-argument is denied.