Lytle v. M'Cune

Opinion by

Rice, P. J.,

The assignments of error relate exclusively to the refusal of the court to set aside the service of summons, which, as shown' by the return, was regular and valid, but which, as claimed by the defendant, was obtained by inducing him by false representations to come within the jurisdiction of the court so that process might be served upon him. It appears by the record that after the first rule to show cause why the service should not be set aside was discharged, the plaintiff filed his statement and entered a rule upon the defendant to plead, and that his attorney accepted service of notice of this rule. Subsequently the defendant obtained another rule to show cause why the service should not be set aside, and after it was discharged pleaded the general issue, filed a bill of particulars, and went to trial before a jury, in which he called witnesses and presented points for charge. No exception to either of the orders above referred to was entered and no bill of exceptions was sealed until after this appeal was taken and the record had been removed to this court. We are all of opinion that by this action the defendant must be held to have waived his objection to the service and to have submitted himself to the jurisdiction of the court: Lycoming Fire Ins. Co. v. Storrs, 97 Pa. 354; Jeannette Borough v. Roehme, 9 Pa. Superior Ct. 33; 197 Pa. 230 ; Philadelphia v. Adams, 15 Pa. Superior Ct. 483; 1 P. & L. Dig of Dec. col. 1154. The case is plainly distinguishable from Coleman’s Appeal, 75 Pa. 441, for there the absolute invalidity of the service appeared by the record, and after the defendant’s motion to set it aside had been refused, he appeared de bene esse, reserving all exceptions to the order and service, and under rule answered under similar reservation. Here there was nothing on the record to show that the defendant did not acquiesce in the ruling and willingly submit himself to the jurisdiction of the court.

Moreover there is grave doubt whether the refusal to set aside the service of a summons upon an allegation of facts outside the record is assignable for error. The principles which control in case of foreign attachment would seem to apply. See Nicoll v. McCaffrey, 1 Pa. Superior Ct. 187, and cases there cited, especially the opinion of Mr. Justice Williams in Holland v. White, 120 Pa. 228 ; also Bellah v. Poole, 202 Pa. 71.

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