I. That an issue be and is hereby of them, and not the plaintiff, hold the framed to be tried before a jury in which legal title and the right of possession in John G. Britton shall be plaintiff and and to said described coal, the verdict of Cumberland W. Posey and Diamond Coal the jury and judgment thereon shall be and Coke Company, a corporation, shall in favor of the defendants and against the be défendants. plaintiff. 2. That the questions to be submitted to and determined by the court and jury shall be: Fifth. Within forty-five days of this date the plaintiff shall file in the Prothonotary's office, to the above and term, First. Does the plaintiff, John G. an abstract of the title, together with a Britton, hold the legal title and the right concise statement of any facts not emof possession in and to all the coal cr braced in said abstract (if any there be) coals, bituminous, anthracite or other- on which he relies to establish his claim wise, underlying the surface of all that that the legal title and the right of poscertain tract or parcel of land situate in session in and to said coal is in him and East Pike Run township, Washington not in the defendants. And within sixty county, Pennsylvania, bounded and de- days of this date the defendants shall file scribed as follows: Beginning at the an abstract of title and a concise statenorthwest corner of said tract at a post, ment of their defence against the claim of corner also of land of Thomas Lilley's the plaintiff and of any other facts (if any heirs, thence by said Lilley's lands south there be) on which they rely to establish 45° 43' east 1571 40 100 feet to a post their claim that the legal title and right and by same north 66° 47′ east 557 72 100; of possession in and to said coal is in thence by Knob Coal Company south 8° them and not in the plaintiff And if 4' east 753 75 100 to middle of a certain necessary the plaintiff shall have five road; thence by said road for almost the days after the defendants have filed their entire distance 56° 43' west 438 47 100 abstract and statement to file a reply to feet to corner of Mrs. M. E. Worrell; any matter not covered by his abstract thence by Mrs. Worrell same course 41 and statement previously filed. 40-100 feet to a stump; thence by same south 39° 33' west 474 57-100 feet to middle of National road; thence by said road north 86° 6' west 404 feet, north 63° 50' west 147 33 feet, north 45° 15′ west 1840 17 100 feet, and thence by said Lilley neirs north 44° 33′ east 1178 80100 feet to place of beginning, containing Thomas et al. v. Lansdale and Norristown Electric sixty six and eighty one hundreths acres, more or less Second. Does the defendant, Cumber land W. Posey, and Diamond Coal and Coke Company or either of them, hold the legal title and right of possession in and to said described coal? Third If it is found that the plaintiff, John G. Britton, holds the legal title and the right of possession in and to said described coal, and that Cumberland W: Posey and Diamond Coal and Coke Company or either of them do not hold the legal title and right of possession in and to said coal, the verdict of the jury ard judgment thereon shall be in favor of the plaintiff and against the defendants. Fourth. If it be found that the defendants, Cumberland W. Posey and Dia Sixth. This issue shall be placed at the head of the trial list made out for the next term of this court at which jury trials will be had under our standing rule. C. P. of Montgomery Co. Railway Company. In a suit to forclose a mortgage given by a tor will not be allowed an order to inspect the corporation in the hands of a receiver, a credibooks of the company before hearing, where the purpose is not clearly stated so as to show petitioner's interest, the information desired, and the purpose. Where the only purpose is to deny the ownership of the bonds, for default of payment of the attached coupons a sale is ject by a subpoena to produce the books at the asked, the opposing creditor can attain his obhearing. The order asked for was not against the plaintiffs, owners of the bonds, but against a codefendant; and there was no averment of collusion, or that the bonds were illegally issued, or that plaintiffs were not bona fide holders of the requisite amounts. Petition to produce books and papers. mond Coal and Coke Company, or either ley and A. R. Place, for defendant. build the defendant's railway, and that he is a creditor on that account. April 14, 1904. WEAND, J.-On Jan uary 4, 1904, this court, under proceed ings for that purpose, appointed receivers The information to be gained by an for the defendant company. On Feb- inspection of the books could only at this ruary 28, 1904, the petition of the Le- time be proper to show that plaintiffs high Valley National Bank, Bethlehem, should not be allowed to demand a forewas presented, in which they prayed to closure of the mortgage. The corporate be allowed to intervene as defendants, acts, the contracts for construction, and and for a decree authorizing them to ap- the books showing receipts and disburseply to the Easton Trust Company, trustee, ments of capital, are foreign to plaintiff's for foreclosure of a mortgage given by demand. If they are the bona fide holders said railway company to said trustee to of the requisite number of bonds, they secure an issue of bonds, the petitioners may be entitled to have the mortgage alleging that they were the holders of foreclosed, and the information desired $92,000 of said bonds, and that by the by this petitioner would have no bearing terms of said mortgage, in case of default on the case. On the hearing of the rule for sixty days after demand for payment on May 5th plaintiffs will be required to of the coupons attached to said bonds, show all that is necessary to support their the whole principal should ecome due, petition, and Mr. Speck can by subpoena and the trustee should on application of compel the produciion of books, etc., the holders of at least one fifth of the showing to whom and for what bonds bonds foreclose the said mortgage ard were issued; and having his rights, if he sell the property. On this petition the has any, thus secured, we do not think court made an order allowing the peti it proper to place at his disposal the tioners to intervene as defendants, and books, accounts, etc., of the defendant granted a rule on the parties in interest company in order to support his claim to show cause why the prayer to foreclose against them. If one creditor was alshould not be granted, returnable May lowed this privilege, others would also 5, 1904, at 11 o'clock. be allowed, thus leading to interminable delay. J. J. Speck, on his petition as a creditor, was allowed to intervene as a defendant, as was also the Schuylkill Valley Traction Company. On March 21, 1904, the petition of J. J. Speck, now under consideration, was presented. in which he alleges that he is intervening creditor whose rights are adverse to the rule granted the bank, and that he desires to make answer thereto; that the receivers appointed by the court and the defendant, the Lansdale and Norristown Electric Railway Company, decline to allow him to inspect the books of said defendant without the court's order; and that said inspection is necessary to prepare said answer. He prays for an order on said receivers and defendant, the Lans. dale and Norristown Electric Railway Company, to produce at Norristown the minute book of said corporation showing its corporate acts, the contracts for con struction of said road, and such books of account as show receipts and disbursements of capital and issue and disposition of bonds and proceeds thereof. In his petition to intervene the petitioner alleges that he was a contractor to The petitioner's standing or rights can not be effected by a refusal of his petition. All that is asked is that a sale of what is alleged as an insolvent be had, and on a question of distribution the rights of creditors can be determined. Whether Mr. Speck's claim will be divested as a lien or claim need not now be decided. In either event, we fail to see why he should be allowed his petition. Before the court can make an order The only reason such as is here asked for, the purpose The Act of February 27, 1798, Sec. 1, 3 Sm., 303, Purd. Dig., 12th ed. 813, 66 No. 19. provides that on motion, and upon good and sufficient cause shown by affidavit or affirmation, the court may," etc.; and in Rose v. King, 5 S. & R. 244, the court said: Every order to produce papers under the Act of Assembly must be founded on a previous affidavit, which, as the law is penal, should set forth with precision every fact necessary to authorize the court to proceed.' " This petition is not sworn or affirmed to, and assigns no fact which he desires to obtain in order to make answer. In other words, he is seeking an opportunity to make a defence without knowing what it is or is to be, or showing any reason why he should answer. It will be observed that the order asked for is not against the plaintiffs but against a codefendant, and contains no averment of collusion between plaintiffs and defendant, or that bonds were illegally issued, or that plaintiffs are not bona fide holders of the requi site amount. Even if the requirements of the Act of 1798 above cited are not applicable, we think that no sufficient ground has been made which would warrant us in making the order prayed for. The application is refused. Strasbaugh v. Dessenberg. Certiorari-Justice's record. The Justice's record gives the form of action as "Summons in Trespass not exceeding $300 claim based on Damages to the person of plaintiff amounting to $500." HELD, on exceptions filed, that the proceedings must be dismissed. The record did not sufficiently show whether the cause of action was one of which the justice has jurisdiction, and is therefore insufficient. All inferior tribunals of limited jurisdiction should be careful, in the first instance to see that they have jurisdiction over the matter of which they are about to take cognizance, and in the second place, to state in their record all that may be requisite to show that they had jurisdiction. Certiorari. J. R. Strawbridge for exceptions. October 3, 1904. BITTENGER, P. J.— The exceptions to the record returned are as follows: "It does not apppear by the record that the Alderman had jurisdiction of the case or of the defendant. The record does not show whether the alleged damages accrued within the statute of limitations, nor whether they were inflicted vi et armis or negligently." In the case of Camp v. Wood, 10 W. 118, it is said in regard to proceedings, in inferior courts: "The civil jurisdiction of justices of the peace in this State, is specially delegated by act of assembly, and limited in its extent. The course of proceeding, to be observed and pursued by them in the exercise of such jurisdiction, which is also prescribed thereby, is certainly in derogation of the common law. and, as has been thought by some, entrenches somewhat upon the provision contained in the constitution of the State, in regard to the trial by jury, on account of its depriving the parties in the first instance, of the right to a trial by jury. There is, therefore, every reason for adhearing to, and enforcing the rule, which requires that all inferior tribunals of limited jurisdiction, should be careful, in the first place, to see that they have jurisdiction over the matter of which they are about to take cognizance, and in the second place, to state in their registry thereof, all that may be requisite to show that they had jurisdiction;" Alberti v. Dawson, Binn. 106. See also Murdy McCutchen, 38 Leg. Int. 232. The effect of the Procedure Act of May 25th, 1887, P. L 271, was to entirely change the significanc of the term "trespass" and to bring within the meaning, as a term of civil procedure, many causes of action formerly embraced within trespass on the case, of most of which justices of the peace have no jurisdiction; Gustwhite v. Bentzel, 8 YORK LEGAL RECORD 181. In that case, decided by Latimer, P. J. of this Court, it was held that the words "Summons in Trespass not exceeding $300" used in that record, no longer indicate in the least degree whether the cause of action was one of which the justice had jurisdiction, and therefore the record was insufficient. Here the language used is "Summons in trespass not exceeding $300.00 claim Montgomery Co. Yerkes et al. v. Stetson, Jr. In a suit against a minor son who lives with his father, a summons served by handing a copy being absent from the State, is a proper service to the father at his dwelling house, the son on the minor under Sec. 1, clause (b,) Act of July 9, 1901, P. L. 614. based on Damage to the person of plain. C. P. of 'The record before us does not fill the requirement, that it shall show sufficient to establish jurisdiction of the Alderman, any more than did the following cases: Geist white v. Bentzel, above cited; Miller v. Ross, 11 Dist. Rep. 790, decided by Stewart, J., in 1901; Wood v. Bronson, 2 Dist Rep. 746 and cases cited; Gable v. Sechrist, 17 YORK LEGAL RECORD 152, and many other cases not necessary to cite; and the judgment cannot be sus.tained. Motion to strike off service of writ. Theo Lane Bean and Algernon B. Ro. Larzelere, Gibson & Fox for defendant. writ in this case is in the ordinary form, April 18th, 1904. WEAND, J.-The and according to the return of the Sheriff, was served as follows: "Served John B. Stetson, Jr, by handing. November 19, within writ to an adult member of his 1903. a true and attested copy of the family at his dwelling house, said adult being his father, John B. Stetson, Sr." The reason for setting aside the service as set forth in the petition of John B. Stetson is that said John B Stetson, Jr., party defendant in said suit, is a minor The exceptions are sustained and the judgment of the Alderman reversed and set aside, at the costs of the plaintiff, for which the Prothonotary shall enter judg-between the ages of fourteen and twenty ment. Weyer v. Dessenberg. Justice's record-Jurisdiction. J. R. Strawbridge for exceptions. For the reasons therein stated the same order of judgment must be entered in this case. The judgment is reversed in this case at the costs of the plaintiff, for which the Prothonotary shall enter judgment against the plaintiff. one years; that said minor was at the time of service, and still is, absent in a distant State for his education; and that the house referred to in said return is not the dwelling house of the infant but of your petitioner, and his exclusive property. By the Act of July 9, 1901, P. L. 614, a writ of summons is to be served: (a) By handing a true and attested copy thereof to him personally, or, (b) By handing a true and attested copy to an adult member of his family at his dwelling-house; or (c) By handing a true and attested copy thereof, at his place of residence, to an adult member of the family with which he resides. All the material facts necessary to a decision of the case are set forth in the petition to set aside the service and the answer thereto. It is not necessary to cite authority to show that the defendant, This service, therefore, was made at the dwelling-place of the defendant, being at the house where he lived, and the house or place recognized by law as his being a minor, has not by a mere tem ing" in these words: "A person has his 'porary absence acquired a domicile or dwelling where he resides permanently residence separate from his iather; the or from which he has no present intenonly question being as to the regularity tion to remove;" "dwelling-house-a deof the service which was made under scription of realty." clause (b). If the "dwelling house" of the father is also, within the meaning of the law, the "dwelling-house" of a minor son living with his father, then the service was strictly in accordance with the requirements of the act. In personal actions in this State the law makes no distinction as to the method of service of original process between a minor and an adult; but after service, before judgment can be taken against a minor, he must have a guardian. home or domicile. If this position is correct, then the service upon his father was also "upon an adult member of his family," else it could not be made upon him at his dwelling house unless handed to him personally. A minor, unless married, strictly It is claimed by counsel for this mo- he is a member of his father's family; speaking, has no family of his own, but tion that the service upon the minor must and in that sense every member of the be personal; and that the dwelling-house father's family is also a member of the of the father was not the dwelling-house family of the others composing the house of the son. hold. To hold the first proposition to be true The Century Dictionary defines "famiwould be equivolant to saying that by ly" to mean: I. "The collective body mere temporary absence service could be of persons who form one household under avoided if by personal service is meant one head and one domestic government, service upon him individually and not by including parents, children and servants, leaving a copy with others. If so, in and, as sometimes used, even lodgers or this case, if the minor is fourteen years of boarders." 2. "Parents with their childage, by remaining away at school, or for ren, whether they dwell together or not; his health, for seven years, he would not in a more general sense, any group of lose his domicile or residence in the persons closely related by blood, as pacounty (his father remaining,) and thus rents, children, uncles, aunts, and cousins prevent service. We can not so construe-oftener used in a restricted sense only of a group of parents and children founded on the principle of monogamy." 4. "In the most general sense, those who descend from a common progenitor." the law. By clauses (b) and (c) the act provided for different classes. In the first (b,) where the defendant has a dwellingIt is no answer to say that the son rehouse, or what is known generally as a sides with his father, and that therefore home-where a person resides perma- it is "his place of residence" within the nently with his family; by (c.) where meaning of the clause (c.) It is his the defendant resides or lives with others, place of residence; but it is also his dwellwith persons not members of his family ing-house, within the meaning of the Act -not at his own home or dwelling-house, of Assembly. The law did not intend to a distinction being drawn between "resi- change the family relationship in this dence" and "dwelling-house."' regard when it merely provided for a A person may have a dwelling-house method of service of process in a personal without being the owner, and hence the action; and clause (c,) in speaking of term or clause (b) is not used in the service at his place of residence, did not sense of ownership but of occupation. A place a minor living with his parents on minor's home, habitation or domicile, the same basis as a defendant residing or whichever term is used, is prima facie living with others and not at his own with his parent, and is therefore his home or dwelling-house. dwelling-house or place of abode. An- The motion to set aside the service is derson's Law Dictionary defines ."dwell-overrulled. |