Silly v. Burt , 1 Pa. Just. L. Rep. 137 ( 1902 )

Per Curiam.

The only question raised by this appeal is the alleged want of jurisdiction on the part of the Justice of the Peace to hear the case, from the fact that the summons was not properly served.

The 16th Section of the Act of July 9th, A. D. 1901, P. L. 614, requires that “Writs issued by any Magistrate, Justice of the Peace or Alderman, shall be served in the county wherein they are issued by the Constable or other officer therein to whom given for service in the same manner and with like, effect as similar writs are served by the Sheriff, when directed to him by the proper Court,” etc. The first section provides “That the writ of summons, etc., may be served by the Sheriff of the county wherein it is issued, upon an individual defendant or garnishee in any one of the following methods: (b) By handing a true and attested copy thereof to an adult member of his family at his dwelling house.”

The summons in this case was returned as endorsed: “Served on defendant by leaving a true copy of the original summons at his dwelling house, with an adult member of his family. It is of course, well for a public officer serving a summons to make his return correspond precisely with the requirements of the Act of Assembly. Whether or not his summons was properly served need not now be definitely determined. It may be said, however, that it is difficult to see how the officer could have left the copy with an adult member of the family, without handing it to him or her. We think, however, without pursuing this subject, the appellant had waived any irregularity, if it existed, in the officer’s return of service of the summons.

1. In taking an appeal. “Section 4 of the Act of March 20, 1810, 5 Sm. L., 161, provides that on appeal from a Justice’s judgment, the case shall be decided on its facts and merits only, and no deficiency of form or substance in the record or proceedings returned, nor any mistake in the form or name of the action, shall prejudice either party.” 10 P. & L. Dig. of Dec. 17,533. See also Swain v. Brady, 19 Pa. Super. Ct., 459. The alleged irregularity appearing upon the face of the record, the appellant’s remedy was by certiorari. He waved the irregularity by the appeal.

2. After the appeal was entered an appearance and a plea and proceeded .to trial upon the merits. Th.is was also a waiver of the irregularity complained of, and by it he is bound. Judgment affirmed.

From Lancaster Law Review,

Lancaster, Pa.