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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

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2

Date.

PITTSBURGH LEGAL JOURNAL

Subject.

1905, April 12... Real Estate

1905, April 14... Brokers

[blocks in formation]

518

1905, April 17....Mechanics' Liens

305

1905, April 17...

Municipalities

401

1905, April 19.

Municipalities

566

780. 796

287

[blocks in formation]

368, 453
689

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
Municipalities
Weak Minded
..Taxation

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

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ABATEMENT AND REVIVAL.
plea
a
will sustain
The court
abatement and will quash a writ of
summons which has been served on
but one of two joint makers of a
promissory note, where it appears
was in-
that, although the action
stituted against both makers of the
note, the plaintiff has caused the
sheriff to refrain from serving the
writ on one of the defendants...
was filed in a
A plea in abatement
partition proceeding on the ground
that the parties were interested as
in another
in common
tenants
farm than the one in question but
that the interests of some of the
the two
parties were different in
A demurrer to his plea
properties.
At
was overruled and issue joined.
the trial defendant proved the con-
tention raised by his plea in abate-
ment. Verdict for defendant.
tions for judgment for plaintiff n.
trial re-
v. overruled and

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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

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1911, June 9.

.Procedure

716

1911, June 15.

1911, June 16.

Mechanics' Liens
.Park Commission

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
Game

126, 351
458

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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
.. Elections

296

521, 522, 577

. Sales

223
378

1913, July 22.... Townships

1913, July 24.
Weights and Measures 649
1913, July 24..
.. Elections .....586, 588, 591
1913, July 24.
1913, July 25.... Elections

1913, July 25.
1914, Oct. 22
1914, Dec. 17.

...577, 579, 580, 581, 585 Female Employes..607, 698 Congress Insurance.

See also Constitutional Law; Statutes,
Acts Construed.

The Bureau of Statistics and Informa-
tion of the Department of Labor and
Industry, by section 11 of the Act
of June 2nd, 1913, may require in-
dustrial establishments, in making
reports of accidents to employes, to
wages
amount of daily
the
state
paid and that department is also
authorized to collect such informa-

110

tion When the

208

1915, April 9

Congress-Drugs
Certiorari

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

[blocks in formation]

1915, June 2.

.Criminal Law

542

1915, June 2.

..Insurance

604

See also Descent and Distribution.
Administrator

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

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..... 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
denied ever
signed the
having
lease, a copy of which was at-
tached to plaintiff's claim and pro-
ceeded to act upon an entirely new
arrangement alleged to have been
made with the agent of plaintiff,
without any explanation 0. his
former admission. Held, That de-
fendant having admitted signing
the lease in the original affidavit
and having denied signing the
same lease in the supplemental af-
fidavit, and contradicted the whole
lease, his position was too incon-
sistent, so that without averments
of fraud, accident or mistake, it
was impossible to tell, whether
there had been a breach of condi-
tion with any degree of certainty.
The court refused to allow the sup-
plemental affidavit to be filed.....
The only date indicating when the
petition for an amendment to а
borough charter was put in circula-
tion is the date at the end were
the words and figures "Turtle Creek,
March 25th, 1915." The petition was
verified by affidavit June 11, 1915.
Between the first and last date a
new act relating to the amendment
and annulment of borough charters
was passed by the General Assem-
bly. This act required that the peti-
tion shall be signed within three
months immediately preceding its
presentation, and stipulated what
the Grand Jury should find. Held,
That the statutory requirement as
to signing cannot be left to infer-
ence, but it must appear as a fact:
nor was the return of the Grand
Jury sufficient in that it falled to
comply with the Act. Proceeding
quashed

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

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