Commonwealth v. Lehigh Valley Railroad , 1895 Pa. LEXIS 977 ( 1895 )

Opinion by

Mb. Justice Mitchell,

It is settled and unquestionable that corporations may be indicted at common law, and it necessarily follows that they may be brought into court by compulsion if required, for the law is never powerless to enforce what it commands. Statutes may be imperfect, and proceedings under them for that reason may be abortive, but it is a settled rule of the common law that there is no right without a remedy.

The question before us therefore is really, what is the proper form of remedy in the case of a corporation indicted for misdemeanor, and refusing or neglecting to appear.

By the common law of England, prior to the settlement of this country, an appearance by the defendant was indispensable, both in civil and criminal cases. For want of it the proceedings came to a permanent stop. The end sought was commonly attained indirectly bjr process of outlawry, by which, in civil actions, after the outlaw’s goods had been forfeited to tire crown, satisfaction thereout was awarded to the plaintiff, but the action itself could not proceed to judgment. B Stephen’s Com. 533 ; Tilg-hmAN, C. J., in Downey v. Bank, 13 S. & R. 288. In criminal cases of course the difficulty seldom arose, as the defendant was usually in arrest and his corporal appearance thus being secured the contention was deferred till the next step in the proceedings, when a contumacious prisoner stood mute and refused to plead. Even then the case was halted, and resort was had to the peine forte et dure to obtain a plea. Sir James Stephen appears to be of opinion that this practice arose from the different modes'of trial in criminal cases when the ordeal was usual and the jury exceptional, only adopted on the election of the prisoner: Hist, of the Criminal Law, vol. 1, p. 298. However this may be it is unquestionable that the necessity of an appearance as well as a plea, was inexorable. And the reason of this seems to me to lie in the fundamental idea of all common law actions that they must be developed upon a defined issue. Without parties in court there could be no lis mota, and without pleas no issue and therefore no trial. The difficulty though insuperable was altogether technical. Hence appearance by attorney was the first solution and satisfied the requirements of ordinary cases, for it is to be remembered that the usual writ in the commencement of actions was the capias, and the defendant was in court in custody either of the sheriff or of his bail. The failure to appear was therefore comparatively of rare occurrence, and this rarity in large measure accounts for the tardiness of the invention or adoption of the remedy of judgment by default.

Corporations not being amenable to a capias the practice in England until altered by statute 7 & 8 Geo. 4, c. 71, sect. 5, was to compel appearance by venire facias and distringas: Regina v. Birmingham etc. R. W. Co., reported in its successive stages in 9 Car. & P. 469 ; 1 Gale & Dav. 457; 2 Gale & Dav. 236.

A venire facias ad respondendum is in fact a summons. “ The practice .... was for the sheriff to whom the writ was delivered to make out a warrant or summons to his officer who thereupon summoned the defendant by delivering to him a copy .... and upon the sheriff’s return of the names of the summoners, if the defendant did not appear,' a distringas issued.” 1 Tidd’s Practice, 155. “ As no capias lay it was the only method of proceeding against peers of the realm, corporations and hundredors on the statutes of hue and cry: ” Id. 112. “ The proper process on an indictment for any petty misdemeanor is a writ of venire facias which is in the nature of a summons to cause the party to appear.” Tomlins’s Jacob’s Law Diet., tit. Process II.

We have therefore to consider the effect in Pennsylvania of a failure to appear after due service of a summons. The ordinary result is to render the party liable to a judgment by default, but the learned judge below, being of opinion that such judgment rests entirely on statute, and the act of June 13, 1836, sect. 33, P. L. 578, not applying to proceedings on indictment, refused to enter judgment in the present case.

The act of 1836 was one of the consolidated statutes reported by the commissioners appointed under the resolution of March 23, 1830, (P. L. 1829-30, p. 408,) to revise the civil code, and introduced no new practice in regard to judgments by default for want of appearance. The explanatory remarks of the commissioners on the sections concerned make no reference to any change. See Report in 2 Parke & Johnson’s Digest, title Judiciary, p. 804. In fact the practice was coeval with the commonwealth, and even antedated it. In the record of the court at Upland in Pennsylvania (Memoirs of the Historical Society of Penn., vol. 7 ) are numerous instances of such judgments. At the session of March 13, 1676-7, Helm v. Oolsen, it is recorded, “ the deft, remaining absent the court doe order that the sa deft, appeare att the next court day to-defend his sd fact, or in case of further default Judgment to passe against him according to Lawe and merrit.” p. 47; in Addams v. Gray, “ the deft, being default and the pit. makeing the justness of his debt apeare the Court ordered judgment to bee entered against the defendant according to the pits, declaration.” p. 83; in Bacon v. Billop, “ the deft, being three tymes called did not appeare, and the action haveing been continued three court dayes in wch tyme notwithstanding hee had due notice and did promisse to appeare, hee hath not appeared and the pit. pressing for judgment, the Court thereupon examining the Case doe think fitt to pass judgm* against ye deft.” p. 139. These examples from the record of the earliest court administering English law on the soil of Pennsylvania, throw a strong light on the action of the colonists under Penn’s charter, next to be noticed. In the sixth article of the laws agreed upon in England under the Frame of Government promulgated by Penn, it was declared that in all courts all persons of all persuasions may freely appear in their own way and personally plead their cause; that the party complained against shall be summoned no less than ten days before the trial; and before the complaint of any person shall be received he shall solemnly declare in court that he believes in his conscience his cause is just: Duke of Yorke’s Book of Laws, p. 100. In the laws made at an Assembly held at Philadelphia March 10, 1683, ch. 66, the foregoing was re-enacted, with the notable addition to the sentence last quoted above, that “if the party complained against shall notwithstanding refuse to appear, the plaintiff shall have judgment against the defendant by default.” Id., p. 128. I have not been able to discover, in the time and with the books at my command, how far this simple and effective mode of reaching a legal as well as just result, agreeing with the practice already in use in the territory under the government of the Duke of York’s charter, as shown by the record of the Upland court, was an original invention of the colonists, or was borrowed, adapted or enlarged from some special or local practice in England. The latter would seem to be more probable, not only from the analogy of the way in which the actions of assumpsit and replevin, and other common law remedies were enlarged and adapted to new usefulness in Pennsylvania, but also from the fact that the judgment by default came into use about the same time in other colonies, though Judge Bell, who delivered the learned opinion in Boston etc. R. R. v. State, 32 N. H. 215, 231, regarded it as an original invention in New England. But whatever its origin the practice has continued to the present time. The act of 1683, ch. 66, supra, was declared one of the fundamental laws of the province, Duke of Yorke’s Laws, p. 154; was abrogated by the king and queen in council, 1693; was put in the Petition of Right, Id. 200; and passed through the usual vicissitudes of re-enactment and abrogation familiar to us in the contests between the early assemblies and the royal authority. It has been with substantial identity the law of the state from the earliest day to the present. See the acts of 1710, Duke of Yorke’s Laws, 337; of 1715, id. 367; of 20 March 1724-5, 1 Dallas’s Laws, 223, 1 Smith’s Laws, 164, and Purdon’s Digest of 1830, tit. Arrest, p. 57, where this act is given as the statute in force prior to the passage of the act of 1836.

None of these statutes apply in terms or perhaps by implication to cases of indictment. The act of May 31, 1718, “ For the Advancement of Justice, and more certain Administration thereof,” 1 Smith’s Laws, 116, provides that if any person indicted for one of certain capital felonies named shall not appear, a capias shall be issued, and if the party be not found proclamation and outlawry follow in prescribed course. The act of Sept. 23, 1791, 3 Dallas’s Laws, 115, also limits outlawry to a few of the more serious felonies, and the existing act of March 31, 1860, P. L. 447, is ■ substantially a re-enactment of the act of 1791. For the lesser felonies, and for all misdemeanors therefore the process of outlawry was practically abolished by these statutes, and if a capias, under the general power of the courts, was not effective, or not applicable, as was the case in regard to corporations, there was no statutory substitute for the ancient process of a venire facias ad respondendum, and distringas. But, as already seen, the whole object of the venire and distress infinite was to secure an appearance, and the whole necessity for an appearance was to get over the technical difficulty in bringing the case to issue. The object and the necessity were the same in the civil and the criminal courts. The older remedies have fallen entirely into disuse in the civil courts, and the end sought is now attained by a judgment entered for the default. The presence of the defendant is not required upon the trial of misdemeanors, and the necessity of an appearance is therefore as barely technical as in civil cases. There is no difficulty in applying the same remedy, and we see no reason why the courts should not recognize the change also in criminal cases without express statute, by force of the common law of Pennsylvania. This was the result reached by the Supreme Court of New Hampshire in Boston etc. R. R. v. The State, 32 N. H. 215, and the decision was approved and followed by the Supreme Court of North Carolina in State v. Western N. C. R. R., 89 N. C. 584. In the former case it was said by Bell, J., “ the foundation of the English common law with its infinite niceties was nothing more than usage; and usage here holds as high a place in our esteem as usage there.” The remark is equally true of Pennsylvania. The late Chief Justice Shabswood, in a lecture before the Law Academy of Philadelphia in 1855, traced with great learning the development of a wide-reaching common law “ by the silent, gradual, yet all-sufficient power of common usage and consent,” citing among other instances the right of a tenant for a term certain to the way-going crop, Diffedorfer v. Jones, 1782, cited in Stultz v. Dickey, 5 Bin. 289; but not to spring grain, Demi v. Bossler, 1 P. & W. 224; the non existence of markets overt, Hosack v. Weaver, 1 Yeates, 479; barring dower by a simple deed, Davey v. Turner, 1 Dall. 11; and, as showing that changes were not confined to the civil courts, the repudiation of the punishment of the ducking stool, and some other punishments not in accordance with the notions of the people, James v. Com., 12 S. & R. 220.

“ Every country ” says C. J. Tilg-HMAN in Guardians of the Poor v. Greene, 5 Binn. 554, “ has its common law. Ours is composed partly of the common law of England, and partly of our own usages. When our ancestors emigrated from England they took with them such of the English principles as were convenient for the situation in which they were about to place' themselves. It required time and experience to ascertain how much of the English law would be unsuitable to this country. By degrees as circumstances demanded we adopted the English usages or substituted others better suited to our wants, until at length before the time of the revolution we had formed a system of our own founded in general on the English constitution, but not without considerable variations.”

From the earliest days of the province, as we have thus seen, the failure to appear after due service of a summons has been treated as a contempt of the process of the court, and the dilatory and cumbrous methods of outlawry and distress to avoid the technical necessity of an appearance have been discarded in favor of the shorter, simpler and more effective remedy of judgment for the default, apparently originating in usage, the fountain of common law, sanctioned by frequent statutory recognition and extended in its operation from time to time by judicial application. An instance of such judicial extension is found in the adoption of the equity rules by this court in 1865, whereby subpoenas to appear were abolished, and in their place was substituted the service of a copy of the bill, with a notice indorsed thereon, to appear, and that on failure to do so a decree pro confesso might be entered thereon, for the default. And a still more recent instance is to be found in Longwell v. Hartwell, 164 Pa. 533, where it was held that judgment might be entered by default for want of appearance against a garnishee, although the statute makes no express provision for any such judgment. We therefore conclude that the practice is entitled to recognition as an integral part of the common law of the state. It is true We have found no precedents in the quarter sessions, or in criminal eases, but as indictments against corporations were even rarer in early times than they are now, the absence of reported decisions is not conclusive against the practice, and as both the object sought and the technical objection to be avoided are the same, and as in misdemeanors, where the personal presence of the defendant is not necessary, the application of the remedy is equally convenient and effective, we see no good reason why the same remedy should not apply in one case as in the other.

The order refusing judgment is reversed, and judgment directed to be entered against the defendant by default for want of appearance.^*

* I am under obligations in this case to a supplemental brief prepared by John Douglass Brown, Jr., Esq., of the Philadelphia Bar.—J. T. M.