Opinion
October 29, 1929.
January 29, 1930.
Sheriff's return — Defective — False — Conclusiveness — Act of July 9, 1901, P.L. 614.
On a rule to set aside the service of two writs of summons, the returns reported that the writs had been served on the defendants by handing a true and attested copy of the writs at a named address to a named person, who was in charge of the defendants' place of business. Each of the defendants alleged that the person upon whom the sheriff served the summons, as indicated by his returns, was not his agent and that he was not engaged in business at the place where the return indicated process had been served. The return was complete on its face, however, and in exact compliance with the Act of July 9, 1901, P.L. 614.
Held: That the return of service of a writ of summons by a sheriff, complete on its face and in exact compliance with the Act of July 9, 1901, P.L. 614, is conclusive and not subject to attack for want of truthfulness by extrinsic evidence unless fraud is alleged and proven.
If a sheriff's return of a writ of summons is defective on its face, a rule to set aside the return will be granted. But, if a sheriff's return of a writ of summons is false, the remedy is against the sheriff, or the court may permit the return to be amended.
Appeal Nos. 308 and 309, October T., 1929, by defendants from order of M.C., Philadelphia County, July T., 1929, No. 270, in the case of Lewis Rittenberg, Isaac Rittenberg, Joseph Rittenberg and Newman Rittenberg, co-partners, trading as Rittenberg Bros. v. Louis Stein and P.A. Specht.
Before PORTER, P.J., TREXLER, KELLER, LINN, GAWTHROP, CUNNINGHAM and BALDRIGE, JJ. Affirmed.
Rule to set aside a sheriff's return of a writ of summons. Before CASSIDY, J.
The facts are stated in the opinion of the Superior Court.
The court discharged the rule. Defendants appealed.
Error assigned was the discharge of the defendants' motion to set aside a sheriff's return of a writ of summons.
Meyer Emil Maurer, and with him Mark Thatcher and Hirschwald, Goff and Davis, for appellants.
Jacob Weinstein, for appellee, but no printed brief.
Argued October 29, 1929.
These two appeals involve the same question. Each of the defendants complained that the lower court erred in discharging a rule to show cause why the sheriff's return of a writ of summons should not be set aside on the ground that he was not engaged in business at the place where process was served.
The sheriff's return of the writ is as follows:
"Served Louis Stein, the within-named defendant, on July 5, 1929, by handing a true and attested copy of the within writ at 1024 Race Street, in the City and County of Philadelphia, State of Pennsylvania, the place of business of said defendant, to Chas. Coll, the person for the time being in charge thereof, being unable to ascertain the residence of said defendant within the county upon inquiry at said place of business.
So answers,
George H. Ratin, Deputy Sheriff, Thomas W. Cunningham, Sheriff." (The sheriff's return as to P.A. Specht, the other defendant, was identical with the service on Louis Stein.)
If the return had been defective on its face, the appellants would be entitled to the relief that they sought: Shamokin L. C. Co. v. Line Mountain Coal Co., 85 Pa. Super. 222. The return as it appears, however, is complete and in exact compliance with the Act of July 9, 1901, p. 614. It is conclusive and not subject, therefore, to attack for want of truthfulness by extrinsic evidence unless fraud is alleged and proven. If the return as made is false, the remedy is against the sheriff, or the court may permit the return to be amended. This question was very definitely decided in Keystone Telephone Co. v. Diggs, 69 Pa. Super. 299; Miller Paper Co. v. Keystone C. C. Co., 267 Pa. 180. See also Industrial v. Sickler, 976 Pa. Super. 152.
Judgment is affirmed.