Citation Numbers: 61 A.2d 837, 360 Pa. 321
Judges: OPINION BY MR. JUSTICE LINN, November 8, 1948:
Filed Date: 9/27/1948
Status: Precedential
Modified Date: 1/13/2023
This appeal by the committee of the person and estate of Harry F. Miller, one of the defendants, complains that the court refused to set aside service of the amended bill in equity on appellant in Allegheny County made pursuant to an order of the court in Clarion County in which the suit is pending. The defendants are Rimersburg Coal Company, a corporation, Harry F. Miller, George Miller and J. J. Miller. The amended bill was served on the coal company and George Miller in Clarion County on July 19, 1944, a service which is not challenged. It is unnecessary to describe the suit further than to say that plaintiffs pray relief by injunction and account on averments *Page 323
of the individual defendants' misrepresentations and fraudulent conduct and the wrongful acquisition of the capital stock of Rimersburg Coal Company. The averments of the amended bill, to which our consideration at this stage of the record is limited, show that George Miller is one of the principal defendants: compare Whittaker v. Miller,
The service on George Miller, one of the principal defendants, qualified the court, in the words of the amended Act of April 6, 1859, P. L. 387, section 1, 12 PS 1254, ". . . to order and direct that any subpœna, subpœnas or other process to be had in such suit, be served upon any defendant or defendants therein, then residing or being out of the jurisdiction of such court, wherever he, she or they may reside or be found . . ."1 *Page 324
Appellant's contention that the Act does not apply where, as in this case, a decree in personam is sought, must be rejected. The suit is pending in Clarion County. One of the principal defendants has been served in that county. The appellant resides in and was served in Allegheny County, in this Commonwealth. The right of the legislature to provide for such extraterritorial service within the Commonwealth is settled; the question was considered and decided in Mid-City Bank Trust Co. v. Myers et al.,
Appellant presents a second question. The amended bill was served on appellant, as the affidavit of service states, by one, Joseph L. McCorry, a service authorized by Equity Rule 27.2 The appellant contends that the Act of May 17, 1921, P. L. 899, 12 PS 302, applies and requires the service to be made by the sheriff and not pursuant to the Equity rule. A similar contention was made and rejected in Slater v. Cauffiel, supra.
Decree affirmed at appellant's costs.