Murdy v. McCutcheon ( 1880 )

Mr. Justice Mercur

delivered the opinion of the Court,

All civil jurisdiction of justices of the peace in this Commonwealth is-given by Acts of Assembly. It is limited to the amount therein specified and restricted to certain forms of action. Care should be taken that they have jurisdiction of the subject-matter of which they take cognisance, and of the person of each on whose rights they profess to pass. Holding a court of limited jurisdiction, their record should show every fact necessary to give jurisdiction whenever it is exercised: Alberti v. Dawson, 1 Binn. 106; Camp v. Wood, 10 Watts 118.

All compulsory appearance before a justice of the peace must be by writ containing information sufficiently clear and explicit to give notice when and where the defendant is commanded to appear. In this case the summons states the day, hour and the name of the justice, but wholly omits to state where his office is or that he has .any. It shows the writ was issued by a justice of the peace of the county of Allegheny; but in what township, borough or ward he resides or his office can be found it gives no information.

The summons issued against two persons. It was served on one only. Without any appearance by either defendant, judgment was entered against both defendants for $298.50 and costs.

Law and justice unite in declaring a person shall have an opportunity of being heard, unless he has waived it, before judgment shall be pronounced against him. Notice to appear without stating where, was practically no notice. He was not required to search in every nook of the county to find the justice. The law imposes no such duty on a person served with process as defective as this. "Without any appearance by the one defendant thus served, judgment against him alone could not be sustained. A. justice of the peace is a judicial officer. He holds a court. That is, a place where justice is judicially administered. To that place the defendant should have been summoned to appear : King v. King et al., 1 P. & W. 15.

It is true, it was held in Jamieson v. Pomeroy, 9 Barr 230, that the judgment might be affirmed against the defendants served and reversed as to the one not served. There the two served appeared, made defence and had a trial, but judgment was entered generally against all the defendants. That is not this case. Here there was no appearance by either defendant. No hearing of either, no trial. Judgment was entered against both of the defendants, as the record declares, “ by default.” It is conceded that the judgment is bad against the one not served. The claim was on a joint contract. The declaration was joint. The judgment is joint. It is incapable of separation : Boaz et al. v. Heister, 6 S. & R. 18 ; Donnelly v. Graham, 27 P. F. Smith 274.

The learned judge erred in not sustaining the first, fifth and eighth exceptions. We deem it unnecessary to consider the other exceptions. The assigments are sustained.

Judgment reversed, and judgment of the justice also reversed and set aside.