Bolard v. Mason

The opinion of the court was delivered, January 3d 1871, by

Thompson, C. J.

— On the 11th of January Í868, the above entitled case being down for trial, having been brought November 1858, judgment by default was entered against the defendants for a refusal to enter a general appearance to the action, an appearance de bene esse by counsel standing on the record at the time. Conceiving the service and return of the writ in the' case to be insufficient, as well as for other reasons, the counsel refused to appear generally, and hence the judgment against their clients by default. They were certainly not bound to appear, if right in regard to the service and return of the writ. “ An appearance de bene esse,” said Duncan, J., “in Blair v. Weaver, 11 S. & R. 87, “ if filled up at length, is an appearance conditionally, viz.: if the summons or scire facias be returned served; if it is, then there is a return with a full appearance, so much so, that on the writ thus returned 1 would consider the party in court, appearing by his attorney, unless on or before the return he entered a retraxit of his appearance2 Tr. & Haley by Eish, 70. Such an appearance is peculiar to Pennsylvania practice. It is not found in the English practice. Its object is to save being defaulted on irregular and informal process. But where objections of this kind do not exist, the plaintiff might demand a plea and enforce judgment for want of it, or in ejectment enter a plea under the Act of Assembly and proceed with the trial. But although the court below held the service and return in the case in hand sufficient, in which case, according to the authorities, the appearance de bene esse became unconditional, yet the defendants were defaulted for want of appearance. This was error on the court’s own theory, measured by the authority referred to. Even if the court had not been in error in holding that there was no appearance, and that the defendants were subject to be defaulted as the record stood, yet this could not be legally done without the affidavit of the sheriff or his deputy, setting forth the manner of service of the writ according to section 2 of the Act of 13th April 1807. No such affidavit appears to have been made. There are, therefore, errors in this also.

Without determining whether the form of the return “ served personally and by copy” was, or was not, sufficient, we are of opinion that it was improperly made in the name of the deputy, merely styling himself deputy sheriff. The English, as also our own authorities, conclusively show, that under the Stat. of 12 Ed. 2, ch. 5, the return of all writs directed to the sheriff must be made in his name by whomsoever served : Wat. on Sheriff’s Marg., paging 67 — 68 ; Dewar v. Spence, 2 Wh. 220; Emly v. Drum, 12 Casey 123. The return here is “served personally and by copy, so answers S. P. Landon, deputy-sheriff.” This was a clear disregard of the rule of the statute; the return was therefore bad and insufficient to bring the defendants into court, so as to authorize a judgment by default against them. We make no account of the omission of a middle initial from the deputy’s name by the sheriff, when deputizing him. It is most likely he was but a special deputy for the occasion. However that may be, the presumption will stand until overturned by proof, that the writ was served by the person authorized, when the Christian' and surname agree, with the exception of a middle initial. It is not intended to say that the irregular return of the deputy might not have been amended by the sheriff if in office. No' doubt it could have been. Whether it might yet be amended we do not say.

While we treat the return of service as we have done, we do not say the writ was void. It is not. It is a good writ, but unexecuted as it stands. Nor do we conceive it necessary to deal with the question raised in argument, that a defendant in ejectment cannot be defaulted for want of appearance after the second term. There are dicta both ways, and I have no doubt the practice has been, to some extent, both ways. This question is therefore reserved. But for the reasons given,

This judgment is reversed.