Citation Numbers: 142 A. 212, 293 Pa. 232
Judges: OPINION BY MR. JUSTICE SIMPSON, May 7, 1928:
Filed Date: 4/18/1928
Status: Precedential
Modified Date: 1/13/2023
Argued April 18, 1928. Defendant is a foreign fire insurance company. Alleging that, under the existing facts, it was not amenable to suit in this State, it entered an appearance de bene esse in the court below, and filed a petition asking that the service of the summons be stricken off. A rule to *Page 234 show cause was granted, which was later discharged, the court below saying: "Our conclusion is that the suit was properly brought in Philadelphia County, that the service was duly authorized to be made, and was properly made by the sheriff of Philadelphia County, and that the attack upon the service for want of jurisdiction in the court to issue its process should be made by affidavit of defense under the Practice Act of 1915, and not by petition and rule."
Defendant then filed an affidavit of defense, and later a supplemental affidavit, alleging a defense to the merits of plaintiff's claim, but stating also that, by reason of the facts specified in the petition to strike off the service of the writ, "your Honorable Court has no jurisdiction in the premises, and objection to the jurisdiction of your Honorable Court will be made by the defendant at the time of the trial."
At the trial, plaintiffs proved a prima facie case, but defendant offered no evidence except so much of the record as related to the proceedings to strike off the service of the summons. The trial judge refused its point for binding instructions, and a verdict was rendered for plaintiffs. Defendant then moved for judgment non obstante veredicto, and after its motion was dismissed prosecuted the present appeal, assigning as errors the refusal of its point for binding instructions, the dismissal of its motion for judgment non obstante veredicto, and the entry of judgment on the verdict. The only point we are asked to decide is whether or not defendant was duly served with the summons. We are of opinion that the appeal was taken too late to have that question reviewed by us.
The Act of March 5, 1925, P. L. 23, specifies in section 1, that "Wherever in any proceeding at law or in equity the question of jurisdiction over the defendant or of the cause of action for which suit is brought is raised in the court of first instance, it shall be preliminarily determined by the court upon the pleadings or with depositions, *Page 235 as the cases may require; and the decision may be appealed to the Supreme Court or the Superior Court, as in cases of final judgments." Section 2 requires that the question be raised in the court of first instance by petition and rule to show cause; and section 3 prescribes that "The appeal here provided for must be taken and perfected within fifteen days from the date when the decision is rendered. . . . . . Provided, That as to decisions made prior to the approval of this act, the fifteen days limitation shall not begin to run until after the date of its approval. A failure to appeal within the time specified will be deemed a waiver of all objections to jurisdiction over the defendant personally."
If the language of the above proviso is given its normal meaning, it is conclusive of this appeal, for defendant preliminarily raised the question involved by a petition and rule to show cause, the rule was discharged on June 13, 1924, and the appeal was not taken until February 17, 1928, far more than fifteen days after the approval of the Act of March 5, 1925, supra. As against this necessary conclusion from the language used, defendant interposes only two objections, which are stated as if they were three.
The first is that "The propriety of the manner of service under the Service Act of 1921, is not a jurisdictional question." This, however, is a mistake, where, as here, it relates to liability to suit in this State, and this defendant recognized in its affidavit of defense, already quoted, where it avers "your Honorable Court has no jurisdiction in the premises." Park Bros. Co. v. Oil City Boiler Works,
The second and third objections are to the applicability of the statute because, as stated in the second, it "requires jurisdictional questions to be raised by petition and disposed of before entering a defense on the merits," and, as alleged in the third, "because the question of jurisdiction can only be raised and tested in strict conformity with the provisions of the Act of March 5, 1925," which could not be done here, since it had been disposed of prior to the passage of the act. These contentions find no support in the language of the statute, which in terms applies to all "decisions made prior to the approval of this act." For us to limit that language, or to add anything to it, would be judicial legislation wholly beyond our province.
The cases cited by defendant to sustain its assertions do not give the slightest sanction to them. In Wilson v. Garland,
Having thus answered adversely all the points regarding the alleged inapplicability of the statute, and this being the only question now raised, we are in duty bound to give effect to the provision that "A failure to appeal within the time specified [that is, within fifteen days after the approval of the act], shall be deemed a waiver of all objections to jurisdiction over the defendant personally," and to hold that, since the present appeal was taken after expiration of the period allowed, we cannot now review "the decision sustaining the jurisdiction over the defendant."
The appeal is quashed.