
    Commonwealth v. Joyce
    
      
      Eckvard M. Murphy, for petitioner.
    
      Philip V. Mattes, county solicitor, for county.
    January 10, 1941.
   Leach, P. J.,

— A petition was filed by a former alderman in which he seeks to compel the payment of certain costs alleged to be due him. The procedure followed in this case is by a rule to show cause. Respondents filed an answer to the rule and raised the question of jurisdiction, setting forth that respondents are not parties, either plaintiff or defendant, in the above-entitled case and that a judgment against them in such case would be of no binding effect. In other words, the court is without jurisdiction to determine in said suit collateral issues between persons, none of whom was either plaintiff or defendant in said suit.

The remedy provided by statute for suit to recover costs is a suit in assumpsit. The answer filed by respondents did not waive the right of the respondents to raise the question of jurisdiction. “A rule is not an original process in any case, but is auxiliary, and for the facilitating of jurisdiction already acquired:” Mitchell, Motions and Rules, p. 3.

There is another serious objection to the proceedings in this case, as we find in Pennsylvania the rule is: “That in all cases where a remedy is provided or duty enjoined, or anything directed to be done by any act or acts of Assembly ... the directions of the said acts, shall be strictly pursued”: Act of March 21, 1806, 4 Sm. L. 326, sec. 13.

We are of the opinion that this rule should be applied to the present case.

Now, January 10, 1941, rule to show cause why the costs in the aforementioned prosecution should not be paid by the county is discharged.  