PENNSYLVANIA Justices' Law Reporter LANSDALE, PA. Published monthly and containing recent decisions affecting the jurisdiction and practice of Justice of the Peaces, and Magistrates, as also those matters concerning which they may from time to time be consulted. VOL. II. SEPTEMBER, 1903. No. I Covert v. Harrower et al. While it is true that a defendant may not have both an appeal and a certiorari at the same time, the entry of an ineffectual appeal, which is stricken off by the Court, is not a bar to a subsequent certiorari, if the defendant be otherwise entitled to sue it ont. APPEAL-MOTION TO QUASH-CERTIORARI-JURISDICTON. No. 484, May Term, 1903, C. P. of Luzerne County. H. A. Gordon, Esq., for Plaintiff. D. C. Harrower, Esq., for Defendant. Opinion by FERRIS, A. L. J., July 2, 1903. The facts of the case are as follows: Nov. 26, 1902, a judgment by default was rendered against defendant by a Justice of the Peace. Dec. 4, 1902, defendant appealed and filed his transcript of appeal in the Court of Common Pleas on the 26th day of December, 1902, that being the first return day. April 11, 1903, on motion of plaintiff's counsel, the Court struck off the appeal, on the ground that the transcript did not show that the defendant had made the necessary affidavit for appeal, and the Justice not having properly entered the recognizance for costs. April 16, 1903, defendant took a certiorari, assigning as reason that the Justice never had jurisdiction of the person of the defendant. Covert v. Harrower et al. The return of service was "served on defendants by presenting to each a copy of the original and informing them of the contents thereof." OPINION: While it is true that a defendant may not have both an appeal and a certiorari at the same time (City v. Kendrick, I Brewster 406) the entry of an ineffectual appeal which is stricken off by the Court is not a bar to a subsequent certiorari, if the defendant be otherwise entitled to sue it out: Ward v. Harlinger 1 W. N. C. 72; Cɔm. v. Feigle 2 Phila. 215. Here an appeal was taken and stricken from the record. Afterwards this certiorari was issued, the exceptions alleging want of jurisdictton in the Justice. An inspection of the record shows that the service was not in accordance with the requirements of the Act of 1901. This Justice, therefore, had failed to acquire jurisdiction of the person of the defendant: Bixby v. Mangan, 11 Kulp 147· The motion to quash is denied, the first exception is sustained and the judgment reversed. Reported by Harrower Bros., Perry v. O'Neil. Everything prerequisite to an appeal must be done within twenty days. The payment of costs within twenty days after entry of judgment by the Justice of the Peace is a prerequisite to an appeal. APPEAL-PAYMENT OF COSTS-PRACTICE. No. 42, C. P. of Warren County, Pa. Motion to quash appeal. Parmlee & Lindsey for Plaintiff. C. W. Stone & Son for Defendant. Opinion by LINDSAY, P. J., March 14, 1903. Perry v. O'Neil. OPINION: The rule to show cause why the Justice of the Peace should not be allowed to correct the transcript so as to be a correct copy of the record as originally made by him is made absolute. The remaining reason given in the plaintiff's motion to strike off the appeal unaffected by the above ruling is that the costs were not paid by the appellant within the twenty days allowed by law for the entry of bail for an appeal. The Justice entered judgment for the plaintiff, Jan. 8, 1903, and on the 24th the defendant appeared before the Justice and made the necessary affidavit for an appeal; and on the 27th he gave the necessary bail, but did not pay the costs, and did not pay them till Feb. 9, 1903, eleven days after the expiration of the twenty days. The decided weight of the decisions of co-ordinate courts is that payment of the costs within twenty days is a prerequisite of the right to appeal: Enyeart v. Lehrsch, 6 Dist. R. 404; Wells v. Weaver, 6 Dist R. 661; Acor v. Acor, 20 Pa, C. C. R. 244: Greer v. Pool, 21 Pa. C. C. R. 521; Beistle v. Bingamon, 22 Pa. C. C. R. 158; Reese v. Lake Shore & Mich. Southern Railroad, 25 Pa. C. C. R. 24. Uniformity in the decisions of Courts of co-ordinate jurisdiction is desirable. I would not, therefore, be disposed to deviate from this general trend of decision, if there was nothing more binding, but the case of Carbaugh v. Sanders, 13 Sup. Ct. 361, leaves this Court no discretion, as I understand that case. In that case, the defendant entered bail for an appeal and paid the Justice's and Constable's costs, leaving $4.26, the costs of the plaintiff's witnesses, unpaid. The Court, in a per curiam opinion, say: "The manifest purpose of this statute was to secure prompt payment of the costs, not only of the Justice, but of the Constable and party; it is, therefore, not to be supposed that the Legislature intended to leave com Perry v. O'Neil. It pliance with its provisions optional with the Justice. was his duty to demand the costs and the defendant's duty to pay them upon being informed as to the amount. The omission of the defendant to comply with this prerequisite to an appeal was without legal excuse; therefore, the Court committed no error in striking off the appeal." The payment of costs is declared in this opinion to be "prerequisite to an appeal." Everything prerequisite to an appeal must be done within twenty days. True, the transcript may be filed in the Prothonotary's office on or before the first day of the next term of Court, but everything must be done before the Justice within twenty days, necesssary to perfect the appeal. Hence, when the Superior Court say in the above opinion that the payment of all the costs is "prerequisite to an appeal," it is equivalent to saying that it is necessary to pay the costs within twenty days. The costs in this case not having been paid within twenty days of the rendition of the judgment, the rule will have to be made absolute. And now, March 14, 1903, rule absolute and appeal dismissed. Robinson v. Thomas. Where the record of the Justice fails to show that the plaintiff or any witnesses were either sworn or affirmed at the hearing, the judgment will be reversed. WITNESSES NOT SWORN OR AFFIRMED JUSTICE'S RECORD No. 95, March Term, 1903, C. P. of Montgomery Co. A. R. Place, Esq., for Defendant. An examination of the record of the Justice of the Peace discloses, inter alia, the following: "And now, to wit: Jan. 23, 1903, plaintiff appears and presents a claim of $77 for Robinson v. Thomas. balance due for rent under a lease, with interest from April I, 1902; defendant fails to appear." EXCEPTIONS FILED UPON THE PART OF PLAINTIFF IN ERROR. I. The record does not show that the summons in said suit was served in accordance with the Act of July 9, 1901, P. L, 614, Sections 1 and 16, by reason of which the said Justice had no jurisdiction. 2. The record of the Justice does not show that the plaintiff or any witnesses were either sworn or affirmed at the hearing, and therefore the judgment by default is errone ous. 3. The record does not even specify the claim with sufficient precision upon which to base a judgment. ment. 4. 5. The record does not show a proper entry of judg The record is not a true transcript of the proceedings had before the Justice for the reason that there is annexed to the same an affidavit, by the Constable Frederick C. Prizer, in which an attempt is made to amend the said record contrary to law. 6. The Justice is without jurisdiction because the summons does not state where the office of the said Justice is located with sufficient clearness. May 7, 1903. Second exception sustained and the proceedings set aside. By the Court. |