Certiorari- -Writ Sparks, P. in E. vs. Cutshall, D. in E. -Service of Rule to Quash Act of 1810, Section 21. Judgment was entered on June 2, 1915, by an alderman, and on June 22, 1915, the defendant below (plaintiff in error) caused a writ of certiorari to be issued. This writ was returnable on July 2, 1915. On July 1, 1915, the alderman was served with the writ and made his return on July 2, 1915. Defendant in error caused a rule to issue to show cause why the certiorari should not be quashed, alleging that the writ was not served within five days as required by the 21st section of the Act of 1810, 5 Smith's Laws, 171. Rule absolute and writ quashed. Quashing certiorari. No. 2375 July Term, 1915. C. P. Allegheny County. Melicar, Hazlett & Gardner, for plaintiff in error. McGinnis & Obernauer, for defendant in error. FORD. J., October 11, 1915.-On June 2, 1915, the defendant in error. Ira F. Cutshall, recovered a judgment against Joseph Sparks, the plaintiff in error, before an alderman. On June 22, 1915, the plaintiff in error caused a writ of certiorari to be issued. The writ was returnable July 2nd. On July 1st, the alderman was served with the writ and July 2nd he made return as by the writ commanded. Whereupon the defendant in error caused a rule to issue to show cause why the certiorari should not be quashed, alleging that the writ was not scrved within five days, as required by the Act of Assembly. Section 21 of the Act of 1810, 5 Smith's Laws, 171, provides that no judgment shall be set aside in pursuance of a certiorari unless the same is issued within twenty days after judgment was rendered and served within five days thereafter. It is the duty of the plaintiff in error to see that service be made in compliance with the Act. In this case the writ was not served within five days after it was issued, nor was it served within five days before the return day as required by the rules of Court. The appellant has not explained or excused the delay. This is not a case of irregularity in service nor of misdirection of the certiorari. It has been uniformly held that service of a certiorari will be quashed when not served within five days after the issuance of the writ: Richcreek vs. Richcreek, 2 York, 98; Central R. R. of N. J. vs. Megargel, 1 Lak. L. N., 172. ORDER. Now, October 11th, 1915, rule absolute. ordered stricken from the record. The certiorari is quashed and 2 Date. PITTSBURGH LEGAL JOURNAL Subject. 1905, April 12... Real Estate 1905, April 14... Brokers 518 1905, April 17....Mechanics' Liens 305 1905, April 17... Municipalities 401 1905, April 19. Municipalities 566 780. 796 287 368, 453 1905, April 22....Procedure 1905, April 24....Undertakers 1905, June 13....Foreign Attachment. 1907, May 23. 1907, May 28. 1907, May 28. 1907, May 28. Municipalities Trust Companies ... Civil Service .. Criminal Law Appeals 1907, May 29.... Liquor License. 1909, April 1.... Boroughs 1909, April 23... Justice of Peace. 1909, April 29... Criminal Law ... Misdemeanor 1909, May 10.... Criminal Law 1909, May 10.... Municipalities 1909, May 11. 1909, May 23. 1910, June 23. ... Constitutional Law Appeals ..Congress-Vessels 1911, March 11.. Corporations 1911, April 13... Divorce Criminal Law 41 ABATEMENT AND REVIVAL. 566 209 0. 62, 80 fused 86 415 351 See Ejectment. 1911, April 21... Municipalities 1911, May 5.....Courts 566 796 See Insurance. 1911, May 18.... Public Schools 121, 325, 553, 566, 657, 701 ACCOUNT. 1911, May 31.... Highways 447 See 1911, May 31. 1911, June 1. 1911, June 1. 1911, June 1 1911, June 4 1911, June 8. 1911, June 8. ...Insurance Municipalities 566 110 .Corporations 465 .Trust Companies 622 .Mechanics' Liens 603 1911, June 9. .Procedure 716 1911, June 15. 1911, June 16. Mechanics' Liens 305 779 1911, June 19....Criminal Law 542 1911, June 20....Corporations 622 1911, June 21....Foreign Attachment 1911, June 23....Municipalities 795 64, 207 1913, March 27.. Husband and Wife. 1913, April 2.... Courts 339 282 1913, April 15....Criminal Law 330 1913, April 17... Forestry 631 1913, April 29....Mothers' Pensions 1913, April 29....Mothers' Pensions 671 .60, 510 .Corporations...48, 179, 270 Descent also Partnership; Equity; Receivers. On exceptions to a trustee's account, trustee that the it was held justified in paying $250 for a bond to secure the purchase of real estate as well as $410 agent's commission A credit was also and counsel fees. allowed for expert witnesses, and the action of the trustee in placing trust funds in a mortgage was unnot be would trustee The held. charged with interest on money in bank pending distribution. If the money left him by will absolutely had actually been paid for during the son's necessities the son's lifetime, there would be need of an accounting. ACKNOWLEDGMENT. and Distribution; was 433 no 644 1913, May 1 Attachment 245 See Deeds; Mortgages. 1913, May 9. 1913, May 9. .. Divorce 126, 351 1913, May 9. Guardian and Ward... 95 tions; Negligence. 1913, May 23.... Courts 796 1913, June 2. ..Labor and Industry. 208 ACTS OF ASSEMBLY. 1913, June 19. 1913, June 12....Judgment 1913, June 27....Municipalities 140 .Prisons 240 177 1913, June 27. .Mines 689 1913, July 7. 1913, July 12. .. Automobiles 296 521, 522, 577 . Sales 223 1913, July 22.... Townships 1913, July 24. 1913, July 25. ...577, 579, 580, 581, 585 Female Employes..607, 698 Congress Insurance. See also Constitutional Law; Statutes, The Bureau of Statistics and Informa- 110 tion When the 208 1915, April 9 Congress-Drugs 267 796 1915, April 9. Appeals 780 a after day tenth reaches the Governor falls on Sunday, he has the following Monday on which to sign it.. bill 299 1915, April 21... Game 368, 496 ACTION ON THE CASE. 1915, April 28... Automobiles 296 See Certiorari; Justices of the Peace. 1915, May 3. Decedents' Estate 667 1915, May 6. Municipalities 609 ADMINISTRATOR. 1915, May 13. Minors 749 1915, May 14. Procedure 716 1915, May 14.... Municipalities 785 1915, June 2. .Workmen's Compensa tion 1915, June 2. .Criminal Law 542 1915, June 2. ..Insurance 604 See also Descent and Distribution. dends on payments made by dece could be no recovery for the reason that decedent had not been a mem sued Building Loan Association to recover Defendant claimed there and divi Page. Subject. ber long enough or made sufficient payments to entitle him to dividends under the by-laws. It was admitted that the association's books showed that decedent had been credited with quarterly dividends as they fell due from time to time. Held, that plaintiff could recover notwithstanding the by-laws and that the declaration of the association's secretary that these dividends were credited in the expectation that the decedent would pay in full were without avail, as he was not empowered to declare the legal effect of the acts of the Board... ADMINISTRATION. See Costs; Fees; Descent and Distribution. ADOPTION. Where the father of a child is dead, and its mother has committed it to the custody of the Poor Directors, who have provided for its support and maintenance for a period of six years, during all of which period the mother of the child neglected and refused to provide for it, the consent of the Poor Directors to the child's adoption is sufficient, without the consent of its mother, and the petition of the mother, filed nearly two years after the decree of adoption, to have the decree of adoption vacated, will be refused ADULTERY. See Criminal Law. ADVERSE POSSESSION. See Ejectment. ADVERTISEMENT. See also Publication; Notice; Divorce. Applicant for liquor license cannot be held responsible for mistake of Clerk of Courts in not properly advertising his application. AFFIDAVIT OF DEFENSE. See Pleading and Practice; Contracts; Judgments. AGENCY. 317 489 242 ..... 558 An amendment to a municipal lien whereby it is intended to exclude certain land after a special verdict has been returned in favor of the plaintiff is not necessary.. Plaintiff's original statement in trespass alleged negligence in putting on roofs of houses and claimed damages resulting therefrom. An amended statement averred that "plaintiff paid defendant the compensation agreed upon for said roof." Exceptions were filed to the allowance of this amendment. Held, That as the original statement contained no averment as to contractual relations the amendment gave rise to a new cause of action and was improper..... an ..... 652 An amendment will be allowed in plaintiff's statement after award by arbitrators and before trial on an appeal therefrom, when the amendment makes a change in the allegations as to the legal effect of a wriften instrument, but does not change the cause of action, except in the manner of its presentation. In such a case defendant need not file a new affidavit of defense..... In a supplemental affidavit, defendant 653 745 785 Subject. APPEAL AND ERROR. Page. Subject. See also Courts; Justices of the Peace; Certiorari. .62-80 Under the Act of May 29, 1907, regulating appeals from Justices of the Peace, a defendant having given bail absolute for debt, interest and costs is entitled to a transcript for an appeal without the payment of any costs and this includes the cost of transcript, appeal, oath, certificate, etc. In an appeal from the Board of Viewers in assessing the damages and benefits for a street improvement, it is proper for the Court to define the words "Just Compensation" as a just comparison of the advantages and disadvantages of the construction of the highway, the net damages after considering the damages and the special benefits... An appeal from a summary conviction. before a burgess, under a borough ordinance, will not be allowed on a petition containing general averments which raise questions of law that might be heard on a writ of certiorari. An appeal should not be allowed for alleged irregularities in the record. If the only cause shown is the desire of the petitioner for a rehearing on the merits, the application for an appeal will be refused It is for the Appellate Court to determine whether an appeal will act as a supersedeas An appeal from the County Court of Allegheny County on the ground that the jury erred in its verdict, will not be allowed when the appellant attaches to the petition for appeal only part of the testimony and all the testimony is necessary to determine the justice of the verdict 65 157 272 282 Petitioner, to have an execution quashed, contended that as an appeal had been entered and approved security given prior to the issuing of an execution, it operated as a supersedeas. Defendant contended that as the appeal had not been taken and bond filed within 21 days allowed for taking an appeal, the appeal did not act as a supersedeas. Held, Under section 4 of the Act of 1897 (P. L. 67), an appeal taken before execution issued acts as a supersedeas, as when the execution was issued the record was no longer within the control of the Court below, and rule absolute..... 395 The Court in an election contest could pass upon the whole matter and hear evidence. It would be unjust to the voters of the district to throw out the vote of this district without fault of their own. The act of a stranger three days after ought to have no effect on the validity of the election, or of the official return of it, and the fact that the spoiler was the judge would make no difference. Without evidence to rebut the presumption that the vote as returned by the election board was correct, the board's return should stand irrespective of the fact that ballots were missing when the box was opened. Appeal sustained. On a petition to show cause why an appeal from an award of a Board of Viewers should not be stricken from the record, it appeared that in plaintiff's petition for appeal, it was not averred that his property, or any part of it, had been taken, injured or destroyed in the construction of a public sewer constructed 593 Page. wholly within the lines of the highways, nor was it averred that he had been assessed benefits for the property taken, injured or destroyed. Rule absolute without prejudice An appeal to the Common Pleas Court from the County Court will be refused where the verdict was for the defendant on the question of contributory negligence, and the question of liability of defendant was presented to the jury by adequate instructions at the trial... A petition to allow an appeal to the Common Pleas from the County Court will be refused where the jury was instructed that recovery could be had on an insurance policy, when the evidence clearly brought the case within the provisions of the policy, and the trial judge committed no error in his charge...... A petition for an appeal to the Common Pleas from a verdict in the County Court was refused. On motion for re-argument. it appeared that no exception had been taken to the charge in the County Court, and that no objection had been made to a particular portion of the charge assigned as error at the time it was delivered. Motion refused... In an appeal from an award of viewers for improving a street in a borough, when the case is tried and under the pleadings and evidence, the question of both benefits and damages is submitted to the jury and a verdict is returned, the Borough cannot proceed independently from this verdict, to collect benefits assessed against the property owner by the viewers and disregard the verdict of the jury... The Act of April 9, 1915, P. L. 48, provides: "In disposing of the application for leave to appeal, the Court of Common Pleas may, in its discretion, direct the entry by the County Court of such judgment as may be proper on the whole record." Plaintiff filed a petition praying for an order directing the County Court to enter judgment in its favor non obstante veredicto or allow an appeal to the Court of Common Pleas. Held, That the Court of Common Pleas cannot usurp the functions of a jury in suits originally entered in the County Court, and will not attempt to do so in considering petitions for leave to appeal from the County Court after the cause has been passed upon by a jury.. ARBITRATION. After choosing arbitrators attorneys for plaintiff cannot withdraw their appearance without notice to defendant In an arbitration under the Compulsory Arbitration Law, one arbitrator did not appear. The other two proceeded to hear the case and made an award. Held, That the award should be set aside, as under Section 18 of the Compulsory Arbitration Law a third arbitrator must be chosen before proceeding. In an attachment execution, the Plaintiff and the Garnishee arbitrated the question at issue under a plea of nulla bona. Held, That the arbitration proceedings should be set aside as the arbitration law does not apply to an attachment execution, and as the want of jurisdiction applied to the subject matter, it could not be waived by the garnishee 630 634 647 654 777 780 128 286 301 |