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202

LEHIGH COUNTY LAW JOURNAL

VOLUME IX

GUTH v. STEIN
Justice of the Peace ---Jurisdiction-Trespass-Certiorari.

A justice of the peace has jurisdiction of an action to recover damages suffered in a collision with an automobile, the judgment being for amount of damages suffered in repairing the automobile.

On certiorari, every presumption consistent with the record, with the regularity of the proceeding, is to be made, and a strict formality will not be insisted upon.

In the Court of Common Pleas of Lehigh County, George E. K. Guth and Elmer Guth v. Cyrus D. Stein. No. 7 January Term, 1920. Certiorari. Judgment affirmed.

James F. Henninger, for Plaintiffs.
Edwin K. Kline, for Defendant.

Groman, P. J., April 5, 1920. Plaintiffs brought an action of trespass against defendant, before an Alderman of the City of Allentown, County of Lehigh and State of Pennsylvania, to recover damages suffered by plaintiffs in a collision with an automobile owned by defendant. Summons issued August 16, 1919, hearing was had before the Alderman on August 22, 1919, defendant failed to appear, the Alderman entered judgment, making the following entry: *** Plaintiffs appear

* * *, defendant does not appear. Plaintiff George E. K. Guth sworn, claims the defendant collided with their automobile on June the 17, 1919, at Franklin and Chew Streets, Allentown, Pa., damaging their car which cost $240.12 to repair. After hearing proofs and allegations, plaintiffs' attorney asks for judgment in the sum of $240.12. And now August 22, 1919, judgment is entered publicly by default in favor of plaintiffs and against the defendant in the sum of $240.12 with interest, together with the costs of suit."

On September 29, 1919, execution issued; the Constable, on October 2, 1919, returning he had “levied upon the goods and chattels of the within naried Cyrus D. Stein." October 7, 1919, a Writ of Certiorari issäeá out of the Court of Common Pleas of Lehigh County, returnable the first Monday of January, 1920; exceptions were filed by plaintiff. At the argument, the question of jurisdiction was further raised. We take it, the question of jurisdiction may be raised at any stage of a legal proceeding; this being so, that question will first be disposed of. In an opinion filed in this court in Richard H. Scheirer v. Edwin J. Gross, 117 April Term, 1915, where the cause of action arose out of circumstances almost similar to those in the matter before us, the question of jurisdiction having been raised before the justice as well as after appeal and trial had, in disposing of the question we held as follows: “The form of the action before the justice and upon appeal is not so material, as the form of action may be changed or an amendment allowed provided the cause of action is not changed: Esher v. Flagler, 17 S. & R. Page 141; Steckel v. Weber, 20 Pa. St., Page 435; Weiler v. Kerschner, 109 Pa. St., Page 219, besides a line of cases commencing with Graham v. Vandalore 2 Watts, Page 131; Bratton v. Seymour, 4 Watts, Page 329; Johnston & Lyon v. Fessler, 7 Watts, Page 48; Seitz and Company v. Buffum & Co. 14 Pa. St., Page 89; but had the Alderman jurisdiction of the cause of action? The plaintiff seeks to recover damages from the defendant suffered in a collision with plaintiff's auto on the public highway, alleging that defendant was negligent in operating the car. The alderman issued a summons in trespass. It is a settled distinction that where an act is done which is in itself an immediate injury to one's person or property, that there the remedy is usually by an action of trespass vi et armis: Marsteller v. Trimbly, 6 Binn, Page 33; Smith v. Rutherford, 2 S. & R. Page 358; Reem v. Rank, 3 S. & R. Page 215; Hobbs v. Geiss, 13 S. & R. Page 418.

Applying the above rule to the facts before us, the court is of the opinion that the act done was itself the cause of the immediate injury to the plaintiff's property, and that the alderman had jurisdiction. This conclusion is strengthened by the views held by the court in Herri

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