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judgment was void. In such case the to proceed further. The want of jurisdiction may be

taken advantage of at any stage of the case. judgment will be stricken off. In that

It is true that the proper course should have been taken case, viz: McKinney v. Brown, it was at the proper time, but in cases of hardship such as this decided that the judgment should be appears to be, allowance must be made, in iavor or jus

tice, for error in judgment of parties, and their counsel. stricken off because the record showed Rule to show cause why an order that the action was against a husband should not be made directing the Proand his wife, and did not show that the thonotary to issue a certiorari upon projudgment was lawfully entered, for a per application therefor. purpose for which the wife could bind

The petition in this case sets forth the herself, or a claim upon which she was following facts: liable, under the statutes in force at the .

To tlie Honorable the Judges of the time of the rendition of the judgment.

Said Court:- The petition of Wm. I. The cases in which the Supreme Court Reisinger, administrator with will annexsustains this ruling are numerous, and the el of Julia Musser, the decease 1 defendlaw was well settled until changed by the ant above named, respectfully represents married woman's act of June 3: 1887. that a transcript from the docket of Geo. Upon ju:Igments recovered after the pas- E. Sherwood, Esq., Alderman, was entersage of this act, brought before the court, el in said court in favor of R. A. Simpit was decided that the rights and liabili. son and against the said Julia Musser for ties of married women in this State have $50.00 on the 12th day of February, A. been completely changed by the said act; D. 1890. That the said transcript shows that a judgment against a married wo- that judgment was entered by said Alman before the passage of the Act of cerman by default against said defend1887, presumed to be void, is now pre ant. sumably valid, and that it is no longer that the summons was personally served

ant. That, the transcript further shows necessary to the validity of such a judg- en said defendant on the 17th day of Dement to set out on the record, the facts, cember, 1890. That in truth and in fact which before the passage of the act, were no summons was served on said defendessential to the validity of the judgment. ant personally nor was any legal service

A motion to set aside or strike off a of the same made upon said defendant in judgment must be upon the ground of

any manner.

The defendant was sick invalidity appearing on the face of the in bed up stairs at the time that the alrecord; Littster v. Littster, 151 Pa. 474, leged service was made and that the Adams v. Grey, 154 Pa. 258.

officer having the summons did not not go It does not appear from the record of

nor ask to go up stairs to see said defendthe judgment in question that the defend- ant, neither did said officer leave a copy ant, Hetty Ann Hess, was a married wo- of a summons with an adult or any other man; and if it Jid, as we have seen, it is member of defendant's family or with no longer necessary that the judgment any neighbor. Your petitioner further shall be self-sustaining upon the record, represents that Julia Musser, said defendto bind a married woman. Her remedy ant, was not indebted to said plaintiff for is by certiorari or appeal. In the lan- professional services or for any other guage of the opinion in Adams v. Grey, cause or thing. Your petitioner further supra, “there is nothing in this case to represents that a short time before the justify either the striking off or the bringing of said suit plaintiff went to the opening of the judgment.

house of defendant and said to her that The rule is discharged.

he had heard that she had got her pen

sion; she answered him yes. He then said Simpson v. Musser, No. 2.

to her, you ought to make me a present, Certiorari-Special allocatur-Fraud.

that I did not want to go on your

affidaOn a certiorari the proceedings cannot be set aside

vit, but finally did so which got you your for non-service of the writ, where the record shows pension. She replied that she had no a valid service. The return of the constable under oath money then, but that later on she might

The petition for a special allocatur charged bad faith make him a present of five dollares. and misconduct of the Alderman, the evidence sustains Your petitioner further says that dethe charge, and shows, if not fraud at least such mis. conduct on the part of the liderman as should invali- fendant's daughter came to your petidate the judgment.

tioner and told him hat a constable After the agreement to discontinue and the receipt of the money, the Alderman was without jurisdiction

was at their house, and told her that

plaintiff, R. A. Simpson, had brought suit upon argument, the Court for the reasons against her mother, that her mother was in its opinion stated, discharged the rule. sick in bed, that her mother said she (See Simpson v. Musser, 6 York LEGAL owed R. A. Simpson nothing and that RECORD 163.) she wanted petitioner to go to the Alder Even on certiorari the proceedings canman and tell him so, and attend to the not be set aside for non-service of the matter for her. That petitioner went to writ, where the record shows a valid sersee the Alderman and told him what the vice. The return of the constable under defendant said and what petitioner him- oath cannot be contradicted in such case, self knew about the matter. And the by parol testimony; Beyerly v. Hunger, Alderman replied Hell! then there is i Woodward 354; Curran v. Atkinson, í nothing in it. Tell Mrs. Musser if she Ash. 151; Bankert v. Senft, 6 YORK will pay $2.00 costs I will enter a non- 'LEGAL RECORD 157. suit, or words to that effect, in the case. The defendant having died after she That the defendant sent the two dollars filed the petition to strike off, having thus with her said daughter to pay the amount mistaken her remedy, the present petiof costs required by said Alderman and tioner, her administrator with the will she paid it to him as requested. And annexed, after the sail decision of the your petitioner holds that under the fore-Court, petitions for the granting of a going statement of facts, all of which he special allocatur. If the non-service of expects to be able to prove, that the I the summons was the only ground upon sai | Alderman had no jurisdiction in said which the application was based, it would case, as there was no summons on the have to be promptly dismissed and the defen:lant and the said judgment was ob- rule discharged. tained by trickery and fraud, and that Black, C. J., in delivering the opinion defendant, the said Julia Musser, never in Lacock v. White, 3 Grant 495, on knew that a judgment had been given page 498, says: “But a judgment may against her by said Alderman, or that he be given against a party without service had issued an execution against her, or of a suminons, and without notice of any that a judgment in said case had been kind until the time of appeal is past. entered in the Court of Common Pleas Certainly this is a great injury and if against her until some time after it was there be no remedy but to open the judgentered, which fact was only discovered ment it would be hard to deny that. and made known to her said daughter There is a remedy, however; such a and other children some time after said judgment would be reversed on certiorari. defendant's death. Your petitioner there. The twenty days limitation does not apfore prays the Court to order and direct ply to cases in which the justice has no the Prothonotary to issue a certiorari in jurisdiction, either of the parties or subsaid case upon proper application being Iject matter, and he has no jurisdiction of made by your petitioner or such other the former when they are not legally order as this Honorable Court may deem summoned. “The fact that notice was advisable, and he will ever pray, &c. not given may be proved by parol" G. B. Cole for rule.

(when the record does not show service)

"notwithstanding some dicta to the conH. S. McNair, contra.

trary; so a judgment obtained by any October 16, 1893. BITTENGER, J.- trick or fraud ought to be reversed, if the This judgment was entered by default, certiorari be taken within a reasonable the defendant (who has since deceasedtime after it is discovered." not appearing The defendant is not The petition in the case at bar charges shown to have had notice of the entry of bad faith and misconduct on the part of judgment against her within twenty days the Alderman in promising that further from the entry, the time allowed for ap- proceedings should not be hal, in the peal or certiorari. Upon the existence of event of the payment of costs by the dethe judgment coming to her knowledge, fendant, Julia Musser. The evidence she filed a petition in Court, asking that shows this, and also that the amount rethe judgment be stricken off on the quired for costs, $2.00, was paid to the ground that there was no legal service of Justice, by defendant, or on her behalf, the summons. A rule was granted, and in compliance with his demands. After

that the defendant was justified in be First. A court of equity has not aulieving the action was discontinued or thority to interfere with the exercise of ended; and the entry of judgment, sub- the discretionary power of the corporate sequently if not a trick and a fraud was officers in fixing the width of the roadsuch misconduct on the part of the Al-way and adjacent sidewalks of a borough derman as should invalidate the judg- street; even though their action may be ment.

contrary to the wishes of the majority of After the agreement to discontinue and the lot owners along the line of the the receipt of the money, the Aljer- street. man was without jurisdiction to proceed Second. The ordinance in question is further. The want of jurisdiction may not a street widening ordinance, and, in be taken advantage of at any stage of carrying it into effect the borough officers the case; Borough of Little Meadows, 28 and the contractors doing the work have Pa. 256; Stearley's App., 3 Grant 270; no authority to change the lines of the Fowler v. Eddy, 110 Pa. 117; Mussel- street. It simply changes the use of the man's App., 101 Pa. 165; Hill v. Tionesta street as at present established, by nartownship, 129 Pa. 525.

rowing the roadway and widening the The only obstacle in the way of the sidewalks. Hence, it was not necessary petitioner is the delay of the defendant to have viewers appointed to assess damand her executor, in making application ages before doing the work contemplated for relief. It must be remembered that by the ordinance. the rule to strike off the judgment was Third. The allegation of a failure to but lately discharged and the pendency of give notice of the proposition to narrow the same in court offers satisfactory ex- the roadway and widen the sidewalks of planation and excuse, in this proceeding. the street in question is positively denied It is true that the proper course shoull in the defendant's affidavits, and is in have been taken at the proper time, but such doubt that the court would not be in cases of hardship such as this appears justified. in the present state of the to be, allowance must be made, in favor proofs, in declaring the ordinance invalid, of justice, for error in judgment of par- and issuing an interlocutory injunction. ties, and their counsel. It is apparent The question as to the truth of this allefrom the evidence in support of the rule gation, and as to the effect thereof if true, that the now deceased defendant was must therefore be reserved until final grossly wronged in the entry of the judg- hearing. ment. We think an opportunity should Fourth. The allegation that the debe afforded the administrator with the fendants propose to widen the sidewalks will, to have the wrong righted, and the by appropriating private property-thus only way this can be attained is to grant changing the lines of the street—is not the prayer of the petitioner.

satisfactorily established. The ordinance The rule is made absolute.

does not contemplate or authorize it, and

the defendants positively deny that the

Luzerne Co. present street lines will be changed in Reich v. Borough of Ashley.

any respect. Therefore the court would Boroughs-Ordinance.

not be justified in restraining the defendWhere the width of the roadway and of the adjacent ants from going on with the work, upon sidewalks of a street have been regularly established, an ordinance changing the same must be published as pre

this ground, until some encroachment

pril 3 upon private property is attempted. 1851, before the same can take effect. Motion for injunction.

Fifth. Where the widths of a roadway

and of the adjacent sidewalks of a street E. A. Lynch, J. L. Lenahan for plain- have been regularly established, an orditiffs.

nance changing the same is within the John McGahren for defendants.

provisions of clause IV, section 3 of the September 19, 1893. Rice, P. J.- act of April 3, 1851, which make it the The necessity for a speedy decision of duty of the corporate officers of a borthis motion prevents more than a very | ough “to publish in at least one newsbrief statement of our conclusions upon paper, if such be printed in the proper the questions raised by the bill and affi- county, and by not less than twelve addavits.

vertisements, to be put up in the most

C. P. of

scribed in clause IV, section 3 of the act of

Vol. VII.

Work Legal Record. Petition of certain citizens of the roth

Ward to change the voting place in the THURSDAY, OCT. 26, 1893. No. 20. first precinct from the public school house

to the public house of Andrew Hirt. public places in the borough, every enact October 10, 1893. PER CURIAM.–We ment, regulation, ordinance or other gen- have no power, jurisdiction or authority eral law, at least ten days before the same to grant the prayer of the first above shall take effect." This being so, posting specified petition. No Act of Assembly of advertisements, as well as publication authorizes the Court to arbitrarily change in a newspaper, was essential. See i Dill. the voting place of any precinct, even Mun. Corp. 330; Sower v. I'nila. 35 Pa. though the owner of the premises should 231 ; Kepner v. Com., 40 Pa. 124; Mar- refuse to permit their further use for that shall v. Mayor, 59 Pa. 455; Parish v. purpose, and presented his petition to the City, 2 Kulp 182; Fuller v. Scranton, 2 court announcing such refusal. SomeCent. Rep. 738; Com. ex, rel. v. Buch- thing more is required, to wit: The anan, 6 Kulp 217.

petition of the requisite number of qualiAn injunction is awarded as prayed fied electors-ten under the Act of May for, to restrain the defendants from pro- 18th, 1893, or five under the Act of Jan. ceeding with the work of narrowing the 13th, 1893, stating sufficient legal ground roadway and widening the sidewalks of for the invoked action of the Court. Main street, under the ordinance of Sep We have then—so far as relates to the tember 5, 1893, until after the same has first above recited petition—nothing but been published by posting advertisements the petition of the President of the Board as required by law; this injunction not to of School Control, in no wise indicated or issue or become operative, however, un- purporting to be the action of the Board til the plaintiffs have given bond, with or authorized by it. We have no inforsufficient sureties to be approved by the mation of any action taken by the Board court, in the sum of five hundred dollars, to prohibit the holding of elections in the and conditioned according to law. Public School houses. Of course we in

fer that no such action has been officially QUARTER SESSIONS.

taken, or we would have received timely

information of it. In re City Polls.

Waiving the question of the power of Elections-Place of Holding-Change of the Board to take such action, of which School Houses.

there is grave and serious doubt, we

think its exercise, if the power exists, No Act of Assembly authorizes the Court to arbitrarily change the voting place of any precinct even would be most injudicious and most dethough the owner of the premises should refuse to pois trimental to the public interests, especimit their further use for that purpose, and present his petition to the court announcing such refusal.

ally at a period so near to the election as The action of the Board of School Control in proi the present time, when no sufficient ophouses (if they have the power to take such action) portunity is afforded to make a judicious lic interests, especially at a period so near to the elec

. selection of new places. We fully rection as to afford no sufficient opportunity to make ognize the inconvenience, and the interjudicious selection of new places.

The holding of public elections is a most important ruption of school duties involved in the public use, involving, as it does the exercise of the holding of elections in school houses, but highest right and performance of the highest and most important public duty of the citizen.

the custom 'has prevailed in every part of Certainly, School Directors should not permit any the State for many years, and the right but even the interests of education--not in this matter has never been questioned or disputed, very seriously affected-may be allowed to suffer the while numerous Acts of Assembly have

, most convenient exercise of the right of suffrage. authorized it in particular cases. The

The Court will not fix as the polling place a house holding of public elections in a most imwhere intoxicating liquor is sold, except in cases of imperious necessity.

portant public use, involving as it does Petition of J. Frank Gable, president the exercise of the highest right and perof the Board of School Controllers of formance of the highest and most imYork, Pa., praying the Court to rescind portant public duty of the citizen. Cerorders alleged to have been previously tainly, School Directors should not permade for holding the public elections at mit any trivial or unimportant matter to certain designated school houses. interfere with schools, but even the in

Query. Will an indictment lie under the common law for such an act?

terests of elucation—not in this matter seriously affected-may be allowed to

Rule to show cause why indictment suffer a slight temporary interruption, shall not be quashed. when necessary to the most convenient County of Lackawanna, ss: exercise of the right of suffrage.

“The grand inquest of the CommonIf the Board of School Control has the wealth of Pennsylvania, inquiring for power to prohibit the holding of elections the

County of Lackawanna

upon in the school houses we earnestly depre- their respective oaths and

affirmacate its exercise. At all events, it should tions do present that Mary Johnson, late only be done in a sufficient length of time of said county, spinster, on the fifth day before the election to afford ample oppor- of September, in the year of our Lord tunity to the electors to express ttheir one thousand eight hundred and ninetypreferences and the Court to make a judi- two, at the county aforesaid and within cious selection of a new place.

the jurisdiction of this Court, then and The second above recited petition is re- there being did willfully and maliciously fused for several reasons.

mutilate, destroy, tear down and remove 1. We have no knowledge except the a certain show bill, placard, programme, allegations in this petition that the school poster or other advertisement, to wit: a directors have prohibited the use of the constable's notice advertising certain school house for election purposes. And property for sale, posted upon a certain we have a right to infer from the petition rail, fence, bill board or other structure, of the President of the Board that no to wit: a certain house located-upon a cersuch action has been taken. Certainly tain public highway in the county aforeif such action had been taken the Board said.' Contrary to the form of the Act would have informed the Court of it. of the General Assembly in such case 2. No sufficient opportunity has been made and provided and against the

peace afforded the voters of the precinct to ex- and dignity of the Commonwealth of press their preference, if a change is to Pennsylvania. be made, and there is no time interven

John P. KELLY, ing before the election to afford them any

District Attorney. such opportunity.

Witness: 3. We are reluctant to fix as the poll John LYNCH. ing place a house where intoxicating John P. Kelly, District Attorney, for liquor is sold. We are forbidden to do Commonwealth. so by Section 2 of the Act of Assembly C. H. Soper for defendant. approved 19th of May, 1893, except in August 21, 1893. ARCH BALD, P. J.-case of imperious necessity, which we do This indictment is under the Act of Vlay not believe exists in this case. In rural 6th, 1887, (P. L. 87), which provides districts where voters have long distances that “any person found guilty of willto travel and require food for themselves fully and maliciously mutilating, destroyand horses, a necessity may exist to hold ing, tearing down or removing any show the eletion at or near a tavern, but no bill, placard, programme, poster or other such necessity exists in this city. And advertisement, posted upon any rail, if we fix the polling place at a tavern it fence, bill board, or other structure in or will follow that the assessor will have to located upon any public 'highway in this sit there in revising the assessment lists, commonwealth, shall be guilty of a misand the primary elections will be held demeanor.” That which the defendant there, which is certain to result in demor- tore down in this case was—as it is dealization.

scribed in the indictment—"a constable's Both petitions are refused.

notice advertising certain property for

sale." The question is whether this falls Q. S. of Com. v. Johnson.

within the purview of the statute. In Criminal Law-Quashing Indictment, our judgment it does not. The act was Act of May 6, 1887— Mutilating Con- evidently passed to protect from mutila

tion stable's Notice.

or defacement the customary The Act of May 6, 1887, making it a misdemeanor to

show bills and posters giving notice of mutilate, destroy, tear town, or remove any show bill, coming public amusements, such as cirnot include the tearing down of a constable's notice or sale. cus-shows, theatrical performances, con

Lackawanna Co.

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