
    SARGENT vs. RICHARDS.
    Where a' non-resident -of the county is sued jointly with another who is served, and the non-resident testifies at the hearing before-the justice, this is a sufficient appearance to justify* a judgment against, him.
    The 7th Section of Act March 28, 1870, P. Laws 596, is constitu* tional.
    Error to Common Pleas of Warren County. Nos. 384, January Term, and 8, July Term, 1884.
    The plaintiff in error is a resident qf Crawford County, and was, at the time these suits were brought, engaged as a contract- or drilling oil wells in Warren County. He had several men in his employ, and among them were Richards & Covanhoven, the defendants in error, and David Hola, who was his foreman. He was indebted to Richards and Covanhoven for a balance on-their wages, and Covanhoven assigned his claim to Richards. Claiming that Richards was indebted to his as much, or more, than the amount of both claims Richards had against him, he refused to pay him. Richards' brought a suit against Sargeant and Holt, his foreman, as partners in both these claims, before R. Schnur, Esq., on a long summons, and service was had upon Holt alone, who was the person he wanted to hold. Sargent was not served, as appears by the transcript. On the return day, May 21, 1883, Holt appeared, and Sargent being a material witness, Holt made and filed an affidavit with the Justice that Sargent was a material witness, and resided in Crawford County, and the case was continued to the 2d of June to allow. Holt an opportunity of subpoenaing Sargent, or getting his •deposition. At the adjourned hearing Sargent was in attendance as a witness without any knowledge that he was a party, .and the case having been tried, judgment was given against him alone. The claims, as presented, were for wages, and the Justice demanded bail for the debt before he would allow an appeal, and Sergent being unable to appeal had a writ of certiorari issued from the Common Pleas in each case. In support of some of the exceptions, the deposition of Sargent was taken by agreement when these cases were reached on the argument list. The Court below, believing these cases came under the 7th sec. of the Act of March, 1870, providing for jury trials before Justices, and that the only remedy for Sargent was an appeal from the judgments of the Justice, quashed both writs, ■and afterward refused to rescind the order quashing the writs.
    The records were returned to the Justice, and executions were issued by him to a constable, and the property of Sargent was sold at a sacrifice.
    Sargent then took these writs of error, complaining that the Court erred in quashing the writs of certiorari, and in not reversing the proceedings of the Justice.
    
      S. T. Neill, Esq., for plaintiff in error,
    argued that the 7th section of Act of March 28, 1870, P. Laws, 596, is unconstitutional. That process being by a long summons, and Sargent a non-resident, the Justice had no jurisdiction; Act July 12, 1842, section 26; P. Laws, 345; 1 Purd Dig., 852, pl, 47; 2 Mc Kinney, Justice, 516. There being a joint summons, and a service upon Holt alone, a judgment against Sargent alone was void; Murdy vs. McCutcheon, 95 Pa., 435; Boaz vs. Heister, 6 S. & R., 18 Donnelly vs. Graham, 77 Pa., 274; Camp vs. Morse, 10 Watts, 118; Albuti vs. Davidson, 1 Binn 106. The writs of certiorari were of right and should not have been quashed without some ground appearing of record. Want of jurisdiction of the Justice; can be shown by deposition, Burginhofen vs. Martin, 3 Yeates, 479; O. & P. R. R. Co. vs. Brittian, 1 Pitts, 271; Dumber vs. Jones, I Ash., 215; Buckmyer, vs. Dubs, 5 Binn, 29.
    
      Messrs. Donly, Wilbur and Schnur, Esqs., contra,
    
    argued that Sargent’s remedy was an appeal under Sect. 7th of Act of March 28, 1870, P. Laws, 596; Hill vs. Olmstead, 1 W. N. C, 387.
   The Supreme Court affirmed the judgments of the Common Pleas on June 9th, 1884, in the following opinion:

Per Curiam.

These two cases were argued together. They present the same question. We cannot look beyond the records. Each transcript shows the parties appeared, and that the plaintiff in error was present at the trial. The fact that he was sworn and testified as a witness for the defendants, does not destroy the legal effect of his presence. The want of service was cured. If aggrieved his only remedy under the special acts applicable to this county was by Appeal, unless, he brought himself within the proviso to the 7th section of the Act of March 28, 1870, P. Laws, 596; Pur. Dig, 856. This he did not do; Hill vs. Olmstead, 1 W. N. C, 387.

Judgment in each case affirmed.  