Mulberry v. Carrier

Opinion by

Orlady, J.,

The real estate of John Mulberry was sold by the sheriff of Warren county under an execution founded upon a judgment regularly obtained against him to Ralph Carrier. Under the provisions of the Act of May 24,1878, P. L. 184, proceedings to recover possession of the real estate were instituted by Carrier before a justice of the peace and a jury of six persons. A judgment in favor of Carrier was recovered in these proceedings and a warrant was issued by the justice to the sheriff of the county to deliver the possession of the premises to Carrier. Mary Mulberry brought this action of trespass against Carrier, the sheriff and his deputies, to recover damages for ejecting her from the premises. The jury was sworn as to Carrier alone and her right to recover depended solely on the character of her possession of the premises when the proceedings were instituted by Ralph Carrier before the justice of the peace. This was recognized as the pivotal point of the case in the plaintiff’s request for special instructions to the jury under her fourth, fifth, sixth and seventh points which were substantially affirmed by the court. The judgment before the justice and the subsequent process were against John Mulberry. Mary Mulberry was not a record party thereto nor did she seek to be made so. The regularity of the proceedings against John Mulberry is not questioned by him. The final judgment therein is unappealed from., Mary Mulberry in this action seeks to attack the judgment obtained against John Mulberry for the reason that as she alleges a summons should have been returnable and a jury of twelve should have been summoned under the act of 1836 instead of a summons returnable and a jury of six under the act of 1878.

She is not in position to question the regularity of the proceedings against John Mulberry. They were not collusive and the justice had jurisdiction of the parties and of the subject-matter. If there were any irregularities therein after a final judgment which is unappealed from, they are conclusively presumed to have been assented to or waived by the parties who had the right to raise the question when it was important. See cases cited 10 P. & L. Dig. of Dec. 16,755, 17,337.

Mary Mulberry claimed that she was in actual possession of the premises from which she had been forcibly evicted by Carrier without having any notice of process directed against her. This possession was disputed by Carrier who claimed that John Mulberry was the only person in possession entitled to notice, and if Mary Mulberry was on the premises she was there as a housekeeper or servant of her brother. Considerable testimony was adduced in favor of each contention and the trial judge fairly submitted the question to the jury as follows: “Now here is the whole question in the case. Was she, or was she not in possession ? We say to you as a matter of law that if you find that John Mulberry was in possession of these premises, although Mary Mulberry was there in the house and had property of her own there, if she was keeping house for John Mulberry and even if she had permission to raise certain things on the premises, that would not make her in the actual possession in such a way as she could recover in this case. If John Mulberry was in the actual possession, then there can be no recovery, because the sheriff had a right to put him out of possession, together with any persons that he had on the premises in his employ working for him.”

Her only pretense to possession was through an arrangement with her brother which the verdict determines as invalid, and from her own testimony it was claimed to be in her own right, exclusive of and not joint with her brother.

The question involved, as stated by appellant, is not raised by John Mulberry, and he is the only person who could raise it. The assignments of error are overruled and the judgment is affirmed.