Commonwealth v. Novek , 1915 Pa. Super. LEXIS 110 ( 1915 )

Opinion by

Rice, P. J.,

In this case, which was tried by the court without a jury, the trial judge reserved decision and subsequently filed an opinion concluding as follows: “The court therefore finds in favor of the plaintiff for $447.40, the amount of the recognizance, with interest from July 26, 1912, to July 17, 1914; judgment to be entered sec. reg.”

The appellant’s first contention is that the municipal court had no jurisdiction of the action. Section 4 of the Act of April 22, 1846, P. L. 477, provides that recognizances of bail for appearance in the oyer and terminer and quarter sessions of Philadelphia, which have been or shall be taken before a judge of the court or before an alderman or justice of the peace of the county and returned to the court “shall be sued and prosecuted in the said court, and in no other court,” etc.

But the act of 1913, establishing the municipal court, declares (sec. 10) that that court “shall have jurisdiction in all civil actions at law and in equity where the value of the matter or thing in controversy,” etc., and (sec. 16) “shall have all the powers of a court of record possessed by the courts of common pleas and of quarter sessions of the peace and oyer and terminer in the county of Philadelphia.” The constitutional question as to the power of the legislature to establish the municipal court and to vest in it exclusive or concurrent jurisdiction of cases formerly cognizable in the courts enumerated in the constitution is now well settled: Gerlach v. Moore, 243 Pa. 603; Philadelphia & Reading Ry. Co. v. Walton, 248 Pa. 381.

The plain and unambiguous provisions of the act of 1913 show an intent to modify the act of 1846, so far as it relates to the exclusiveness of the jurisdiction of the courts of quarter sessions and oyer and terminer, and to give to the municipal court concurrent jurisdiction. There being no obstacle in the way of carrying out this plain legislative intent, we hold that the municipal court had jurisdiction.

The second assignment of error raises, very informally, the question whether the judgment was warranted by the facts. The facts are very clearly set forth in the opinion filed by the learned trial judge, and we call attention particularly to these: (1) that the defendant executed a recognizance in the sum of $400 for the appearance of Ittel Brod in the court of quarter sessions of Philadelphia county, “to answer all such charges as may be preferred against the defendant;” (2) that the recognizance was declared and adjudged to be forfeited by the court of quarter sessions on July 26, 1912, for the nonappearance of the defendant on the charge of desertion; (3) which was one of the charges for which Brod was held to appear at court by the magistrate, the other being nonsupport. In addition to these we call attention to the fact that an indictment for desertion was found against Brod.

It is argued that the magistrate had not authority to issue a warrant against Brod for desertion and hold him to appear at court upon that charge, because the information on which the warrant issued only charged nonsupport. Whether this would have been valid ground for moving to quash the indictment for desertion, or to take off the forfeiture, are questions that need not be discussed. Be that as it may, the learned judge very pi’operly held that the recognizance and the judgment of .forfeiture were not subject to impeachment collaterally upon grounds that did not go to the jurisdiction of the magistrate or of the court that entered the judgment: Com. v. Flomenhaft, 3 Pa. Superior Ct. 566; Com. v. Meeser, 19 Pa. Superior Ct. 1; 5 Cyclopedia of Law and Procedure, 149.

The third assignment of error is really based on a contention as to the insufficiency of the evidence to establish the loss of the recognizance and its contents. As there was no request for special finding of fact upon that subject, we might well dismiss this assignment without further comment upon the principle of Com. v. Beech Creek R. R. Co., 188 Pa. 203. We have examined the evidence and' while it is to some extent conflicting, it was sufficient to warrant the judge’s expressed finding that the recognizance was lost: Smith v. Kaufman, 30 Pa. Superior Ct. 265, and cases there cited.

The objection raised on the argument as to noncompliance with the provisions of the act of 1874, relative to trial of cases by the court without a- jury, has been fully considered in Philadelphia and Gulf Steamship Co. v. Clark, in which we herewith file an opinion.

The assignments of error are overruled and the judgment is affirmed.