Appeal, No. 216, April T., 1957, from judgment of Court of Common Pleas of Fayette County, Dec. T., 1955, No. 747, in case of J. Owen Shultz v. Keystone Fireworks Manufacturing Company, Inc. Judgment affirmed.
Henry R. Beeson, with him Higbee, Lewellyn & Beeson, for appellant.
David E. Cohen, with him Joseph W. Ray, Jr., and Ray, Coldren & Buck, for appellee.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.
[ 185 Pa. Super. Page 246]
The judgment of the court below should be affirmed on the excellent opinion of President Judge CARR, which is as follows: "This is a motion for judgment on the pleadings. The action is assumpsit on a judgment in personam of a sister state, and the question involved is whether, though the defendant was not properly served and did not appear before the judgment was entered, a subsequent appearance by counsel for the purpose of moving the court to vacate the judgment constituted a waiver of the want of jurisdiction.
"The complaint sets forth that on October 29, 1954, the plaintiff, J. Owen Shultz, recovered a judgment against the defendant, Keystone Fireworks Manufacturing Company, Inc., a Pennsylvania corporation, in the Circuit Court of Monongalia County, West Virginia, for the sum of $3,500.00, with interest and costs, which remains in full force, not having been annulled, reversed, or satisfied. Attached to the complaint and made a part of it is an exemplification of the record of the proceeding and judgment.
"It appears that the plaintiff owned a barn in Monongalia County, West Virginia, which on September 1, 1952, was set on fire and burned to the ground allegedly as the result of the negligence of the defendant
[ 185 Pa. Super. Page 247]
in the management of a ceremonial display of fireworks on adjoining premises. On April 21, 1954, the plaintiff commenced in the West Virginia court an action of trespass on the case, filed an affidavit that the defendant was a foreign corporation not qualified to do business in West Virginia and had no statutory attorney-in-fact, officer, director, or agent within the State of West Virginia upon whom service of process could be had, and thereupon obtained an order for service by publication, notice of which was advertised in The Morgantown Post, a daily newspaper published in Morgantown, Monongalia County, West Virginia, on April 23, April 30, and May 7, 1954, and posted at the front door of the Court House. The defendant did not appear in response to the published notice, either in person or by counsel, and on October 29, 1954, a jury having been called and sworn returned a verdict in favor of the plaintiff in the amount of $3,500.00 On the same day the court entered judgment on the verdict.
"Thereafter, on March 2, 1955, as the record is, the defendant by its attorney 'moved the court for leave to appear specially for the sole purpose of moving the court to vacate the order and judgment heretofore entered in this case on the 29th day of October, 1954, in the amount of three thousand, five hundred dollars ($3,500.00), and leave being granted, the Keystone Fireworks Manufacturing Company, Inc., by its attorney, appeared specially for the sole and only purpose aforesaid and moved the court to vacate said order and judgment, to which the plaintiff objected, and the court hereby sets the matter down for further hearing.' Finally, on March 30, 1955, having heard the arguments of counsel and ...