(265 Pa. 43) although a matter to be considered in deter- The judgment is reversed, and it is directmining the extent of the municipality's duty ed that judgment be entered for plaintiff on with respect to its condition, did not relieve the verdict. the borough from its obligation of maintaining its highway in a reasonably safe condition for public travel under all the circumstances. Wall v. Pittsburg, 205 Pa. 48, 54 Atl. 497; Emery v. Phila., 208 Pa. 492, 498, 57 Atl. 977. Defendant's negligence in this respect was properly submitted to the jury, and the only questions now requiring our consideration are 1. JUDGMENT 778 LIEN CONFINED TO whether the borough had notice, either actual or constructive, of the defective condition of the avenue, and whether plaintiff was guilty of contributory negligence. . [3, 4] Defendant's superintendent of streets visited the locality a short time before the accident for the purpose of connecting plaintiff's dwelling house with the water main laid in the street, and at that time saw the defective condition of the roadway at the curb box in question. If the defect was dangerous and existed as testified by witnesses for plaintiff, defendant's official having charge of the municipal highways had personal knowledge of that fact. Aside from this, however, the existence of a defect of the character claimed for the length of time testified to by witnesses for plaintiff is sufficient to support a finding that defendant had constructive notice of the danger. Llewellyn v. Wilkes-Barre, 254 Pa. 196, 98 Atl. 886. The testimony fails to sustain the conclusion of the court below that plaintiff was guilty of contributory negligence. Although she resided in the neighborhood for 1 year and 8 months, 12 years previous to October, 1916, and had returned about a month before the accident, and while she admitted that during the time since her return she crossed the street "pretty often" on a path located a few feet from the place of the accident, she denied having observed the washed out condition of the street at the curb box, hidden, as she says, by weeds growing along the edge of the path, although visible from the porch of the neighboring house. The danger, under the circumstances, was not so obvious as to justify the trial judge in holding as matter of law that plaintiff was negligent in undertaking to cross the street at night without a light to guide her. Musselman v. Hatfield Boro., 202 Pa. 489, 52 Atl. 15; Wall v. Pittsburg, 205 Pa. 48, 52, 54 Atl. 497; Miller v. Montgomery Boro., 39 Pa. Super. Ct. 597. The trial judge submitted all questions to the jury on a charge of which no complaint is made, and a verdict was rendered in favor of plaintiff for an amount which, under the evidence, seems reasonable. We are of opinion, however, the entry of judgment for defendant non obstante veredicto was not warranted under the facts established by the evidence. McLANAHAN et al. v. GOODMAN et al. (Supreme Court of Pennsylvania. May 12, 1919.) COUNTY OF ENTRY. The lien of a judgment does not extend beyond the county where it is entered. 2. JUDGMENT 778-TRANSFER OF JUDGMENT LIEN TO ANOTHER COUNTY. The lien of a judgment can be transferred to another county, where process may be issued and land therein taken in execution, or such land may be taken on a testatum writ from the original judgment. 3. EXECUTION 65, 217-SALE OF LAND OUT SIDE COUNTY VOID. Except as authorized by statute, a sheriff cannot levy upon or sell land situated beyond his own county, and such sale by him is void for lack of power and conveys no title, and a writ of venditioni exponas does not give him such authority. 4. EXECUTION 275(3) NONCOMPLIANCE WITH STATUTE INVALIDATING TITLE. Where a tract lying in two counties is sold by the sheriff, after fieri facias issued, levy and without any compliance with Act June 13, made, and inquisition had, in one county only, 1840 (P. L. 692) § 12, no title passes by the sale to the part of the land lying in the county in which no proceedings were had. 5. EXECUTION 65 - SHERIFF'S RIGHT TO SELL LAND IN ADJOINING COUNTY. Under Act June 13, 1840 (P. L. 692) § 12, the sheriff had no right to sell land in an adjoining county until after the return of the inquisition, showing the necessity therefor, has been approved by the court. 6. EXECUTION 65 WAIVER OF INQUISI TION. The inquisition required by Act June 16, 1836 (P. L. 769) § 43, relating to execution, is for defendant's benefit, and may be waived by him, but he cannot waive the inquest required by Act June 13, 1840 (P. L. 692) § 12, as that is for the benefit of parties in interest, and seize the lands out of his bailiwick in the first thereunder the sheriff is not empowered to instance, but the court will order a writ to sell the whole after confirmation of the return to the inquisition. 7. EXECUTION 217-OFFICE OF A "VENDI TIONI EXPONAS." The office of a "venditioni exponas" is to sell property previously taken in execution, and it is not a writ separate from the fi. fa., but a part of it. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Venditioni Exponas.] (108 A.) 8. EXECUTION mm 242 CONFIRMATION OF SHERIFF'S DEED NOT CURING FATAL DEFECTS. Confirmation of a sheriff's deed cures irregularities and defects, which make the sale voidable, but not such fatal defects as render it void; and lack of power in sherif to make the sale is a fatal defect. 9. EXECUTION 19-SUCCESSIVE EXECUTIONS; ESTOPPEL TO RECOVER LANDS PURCHASED AT SECOND SALE. The fact that plaintiffs in ejectment were judgment creditors at the time of the sheriff's sale of land in Huntingdon county, later transferred their judgments to Blair county, and revived the executions did not estop them from recovering the land, where nothing appeared to support a finding that they so participated in the original sale, or so ratified it as to constitute an estoppel. on that an inquest was held and the land condemned under Act June 16, 1836, § 43 (P. L. 769; Purdon's Digest [13th Ed.] vol. 2, p. 1561). The executions consisted of writs of fieri facias upon which the land was taken in execution and later sold on writs of venditioni exponas, in all of which it was described as situated in Porter township, Huntingdon county; as it also was in the sheriff's deed to Henry Longstreth, the purchaser at that sale. While the description embraced the entire tract, there was no intimation that any part of it was in Blair county and no inquisition was held as required by the hereinafter mentioned act of 1840, for the sale of land in an adjoining county, nor was any other attempt made to comply with that act. Defendants are the owners of the Harry A. Mumper interest, also the widow's Appeal from Court of Common Pleas, dower, and the title acquired by Longstreth Blair County. as sheriff's vendee. Ejectment by M. H. McLanahan and another, executors of J. King McLanahan, deceased, and another against Samuel H. Goodman and others, executors of L. S. Goodman, deceased. Verdict for plaintiffs, and from a judgment for defendants n. o. v., plaintiffs appeal. Reversed and judgment entered for plaintiffs upon the verdict. Argued before BROWN, C. J., and FRAZER, WALLING, SIMPSON, and KEPHART, JJ. L. H. Beers, of Huntingdon, and W. I. Woodcock, of Altoona, for appellants. James S. Woods and H. H. Waite, both of Huntingdon, and Thomas C. Hare, of Altoona, for appellees. WALLING, J. This is an action of ejectment. In 1846 Blair county was erected out of parts of Bedford and Huntingdon counties; a section of its eastern boundary being along the crest of Tussey mountain, and extending westerly therefrom is a tract of 566 acres of land in Catharine township, Blair county, which forms the subject of this suit. It is a part of a tract of 1,425 acres, the balance of which is, and all of which prior to 1846 was, in Huntingdon county, and constituted the Irwin, Copp, Cone, and Dorsey tracts. In 1875 the title to the 1,425 acres became vested in Abraham Mumper, who is the common source of title. He died intestate the same year and, subject to the dower interest of his widow, the title to this land vested in his two sons, John W. and Harry A. Mumper. The former became so financially involved that about 40 judgments were entered against him in Huntingdon county, where his one-half undivided interest in the 1,425-acre tract was sold by the sheriff in 1886, on executions issued upon judgments, all but one of which waived inquisition, and Plaintiffs were judgment creditors of John W. Mumper at the time of the sheriff's sale above mentioned, but it is not shown that they were present at or participated in the sale, nor were their judgments paid by the proceeds thereof. Many years thereafter, however, they transferred them to Blair county, where they were revived and executions issued thereon by which the sheriff of that county in 1916 seized and sold John W. Mumper's one-half undivided interest in the 566 acres of land there situated, which plaintiffs purchased and brought this suit. Until recently the entire 1,425-acre tract was assessed and the taxes paid thereon in Huntingdon county. It is rough mountain land, but has become valuable. At the trial the court directed a verdict for plaintiffs, but subsequently entered judgment for defendants n. o. v., from which the former brought this appeal. [1-3] The case was rightly ruled at the trial, and judgment should have been entered on the verdict. The lien of a judgment does not extend beyond the county where it is entered; however, it can be transferred to another county where process may be issued and land therein taken in execution, or such land may be taken on a testatum writ from the original judgment, but neither was done here as to the first sheriff's sale. Except as authorized by statute, a sheriff cannot levy upon or sell land situated beyond his own county. Such sale by him is void for lack of power, and conveys no title. Menges v. Oyster, 4 Watts & S. 20, 39 Am. Dec. 56, and see Wilson v. McCullough, 19 Pa. 77. [4, 5] Section 12, Act June 13, 1840 (P. L. 692; Purdon's Digest [13th Ed.] p. 1575), provides that "When any part of any lands or real estate, which lie in one or more adjoining tracts, in different counties, has been or shall be taken in For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes execution, under any writ of fieri facias, or a writ of levari facias, issued out of any court in either county, it shall be the duty of the sheriff to summon an inquest, for the purpose of ascertaining whether that part of said land which has been taken in execution can be sold separately and apart from the other part of said land lying in the adjoining county or counties, without prejudice to the whole, or to the interest of the defendant or defendants, or any of his, her or their lien creditors, or other person, who may be interested in the proceeds thereof; and also how much, and what part of said lands in such adjoining county or counties, ought to be sold with that part taken in execution as aforesaid, describing the same by metes and bounds; and he shall make a return in due form of law, of the inquisition taken with the writ. And if the said inquest shall find that the part of said lands taken in execution cannot be sold separately from the other part lying in the adjoining counties or a portion of the same, without prejudice as aforesaid, and the inquisition shall be approved by the court, the plaintiff may have a writ of venditioni exponas, or writ of levari facias, * to sell said lands and real estate, taken in execution, and other part in such inquisition mentioned and described, by virtue thereof." The act further provides for the manner of sale, including notice to be given in each county and the filing of a copy of the docket entries, etc., in the adjoining county. But in the case at bar no inquest was held (except that under the act of 1836), and no steps whatever taken to comply with the statute above quoted. On the contrary, the sale was conducted apparently on the assumption that the entire 1,425-acre tract was located in Huntingdon county. Under the act of 1840 the sheriff's right to sell land in an adjoining county does not arise until after the return of the inquest, showing the necessity therefor, has been approved by the court (Elliott v. McGowan, 22 Pa. 198); and as no inquest was held it follows that the sheriff acquired no right under that act to sell the land in Blair county. As the record shows that the entire tract was seized and sold as land in Huntingdon county, there can be no presumption of compliance with the act of 1840. [6, 7] The inquisition required by the act of 1836 is for the defendant's benefit, and may be waived by him; but as the court be low rightly concludes he cannot waive the inquest required by the act of 1840, as that is for the benefit of all the parties in interest. Under that act the sheriff is not empowered to seize the lands out of his bailiwick in the first instance, but the court will order a writ to sell the whole after confirmation of the return to the inquisition. See opinion of Judge Sharswood in Worthington v. Worthington, 3 Clark, 208. So in the first instance the sheriff had no right to levy upon the land in Blair county under writs issued in Huntingdon county. But it is contended that the writs of vend. ex. thereafter issued in the latter county authorized the sale of such land. This contention cannot prevail. The office of a vend. ex. is to sell property previously taken in execution. It is not a writ separate from the fi. fa., but a part of it. Neil v. Colwell, 66 Pa. 216; Hughes v. Rees, 4 Messon & Welsby, 469. A sale thereunder in the present case passed a title to the land in Huntingdon county, upon which there was a valid levy, but not to that in Blair county, where the levy was void. In the absence of proceedings under the act of 1840, the court in Huntingdon county had no authority to order the sheriff of that county to sell the land in Blair county, even conceding that the writs of vend. ex. in question amounted to such order. See Buehler v. Rogers, 68 Pa. 9. [8] Confirmation of a sheriff's deed cures irregularities and defects, which make the sale voidable (McFee v. Harris, 25 Pa. 102; Clough v. Welsh, 229 Pa. 386, 78 Atl. 1000), but not such fatal defects as render it void; and lack of power in the sheriff to make the sale is a fatal defect (Shields v. Miltenberger, 14 Pa. 76; McLaughlin v. McLaughlin, 85 Pa. 317, 324; Cock v. Thornton, 108 Pa. 637; Keystone Collieries v. Mudge, 256 Pa. 130, 100 Atl. 526, 1 A. L. R. 1428). [9] The fact that plaintiffs were judgment creditors at the time of the first sheriff's sale and later transferred their judgments to Blair county does not estop them from recovering the land here at issue. Nothing appears to support a finding that they so participated in the original sale, or so ratified it as to constitute an estoppel. The judgment is reversed, and is here entered for the plaintiffs upon the verdict. (108 A.) GRIFFITH v. GRIFFITH. (Superior Court of Delaware. New Castle. Nov. 17, 1919.) 1. DIVORCE 76-STATUTES AS TO PROCESS STRICTLY CONSTRUED. Provisions of Divorce Act (Rev. Code 1915, §§ 3004-3032), conferring jurisdiction upon the Superior Court in actions for divorce, including the character of the process prescribed and the methods of its service, should be strictly construed and rigidly enforced for the reason that they are matters essential to jurisdiction. 2. TIME 5-PUBLICATION OF ALIAS SUMMONS FOR "ONE MONTH." The first publication of the alias summons' in this case was on the 4th day of October, and the present term of court, it being the second term after issuing the original writ, began on the 3d day of November. The question is, was the alias summons published one month as required by the statute? It is not a matter of days, but the meaning of "one month" which is to be considered. [2] Section 1 of the Code relative to rules to be observed in the construction of statutes, provides: "The word 'month' shall be construed to mean a calendar month, unless otherwise expressed. "One month," in the Divorce Act (Rev. So that "one month," in the Divorce Act Code 1915, §§ 3004-3032), requiring publication of an alias summons for one month, means means a calendar and not a lunar month. a calendar and not a lunar month, and means A calendar month means a month as desiga month ending on the day in the next suc-nated in the calendar, without regard to the ceeding month corresponding to the day in the number of days it may contain. preceding month on which the first publication was made, except where the succeeding month has not so many days as the date on which the publication was made in the preceding month, in which case the month expires on the last day of the succeeding month, in view of Rev. Code 1915, §§ 1, 3013. Action by Rebecca R. Griffith against William A. Griffith for divorce on the ground of extreme cruelty. Petition dismissed for the reason that the alias summons had not been published for one month. BOYCE and RICE, JJ., sitting. As applied to the publication made in this case "one month" means a month ending on the day in the next succeeding month corresponding to the day in the preceding month on which the first publication was made. Nothing less meets the computation by a calendar month, unless it be that the succeeding month has not so many days as the day on which the publication was made, in the preceding month, then the rule appears to be that the month expires on the last day of the succeeding month. Subject to this exception, computation by calendar month excludes one day. Both days are never in Edmond S. Hellings, of Wilmington, for cluded. Daley v. Anderson, 7 Wyo. 1, 48 plaintiff. BOYCE, J., delivering the opinion: Pac. 839, 75 Am. St. Rep. 870; 38 Cyc. 312, IV. The petition is dismissed, without prejudice. [1] Jurisdiction of the Superior Court in actions for divorce is conferred by chapter 86, Rev. Code 1915, and is acquired in the manner prescribed by the statute. It has been held by this court that the provisions CLOSE et al. v. SOUTHERN MARYLAND of the statute, including the character of the process prescribed and the methods of its service, should be strictly construed and rigidly enforced for the reason that they are matters essential to jurisdiction. Morris v. Morris, 2 Boyce, 583, 83 Atl. 934. The summons issued in this case returnable to the September term last could not be served personally upon the defendant and the case was continued to this, the succeeding term for an alias summons. Section 3013 of the Code provides: "When the defendant cannot be served personally within this state, * * * an alias summons shall issue to the second term next after issuing the original writ, which the Sheriff shall publish for one month in such newspapers of the county, one or more, as he may judge best for giving the defendant no tice. * (134 Md. 629) AGRICULTURAL ASS'N. (No. 27.) (Court of Appeals of Maryland. June 25, 1919. Rehearing Denied Oct. 8, 1919.) 1. APPEAL AND ERROR 781(4)-MoOT QUESTION BY EXPIRATION OF LICENSE TO PERMIT BETTING ON RACES. Appeal from an order of the circuit court granting an agricultural association a license to make and permit betting, pool selling, and bookmaking on the result of horse races on its grounds pursuant to Code (vol. 3) art. 27, §§ 218-221, held not open to dismissal as involving only a moot question after expiration of the time for which the license was issued. IN LOWER COURT FOR PURPOSE OF ATTACKING If action of circuit court, in granting agricultural association license to make and permit betting, pool selling, and bookmaking on the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes result of horse races, was prohibited by Declara- [ persons, who certified that they were qualition of Rights, art. 8, because not a judicial act, fied voters of that election district, and rethe circuit court had no jurisdiction to grant quested the court to grant the license to the the license, and the Court of Appeals can en- appellee. On the same day an order was tertain an appeal from its action, having jurisdiction to review the circuit court acting with- passed by Judge Beall of that court granting out jurisdiction either on appeal, writ of error, the license prayed for, unless cause to the or of its own motion, even though the question contrary be shown on or before the 18th day of jurisdiction was not raised below, as Code, of March, 1919, provided notification be given art. 5, § 9, does not apply to such question. of the filing of said petition by publication of the order as therein directed. On March 18th 3. CONSTITUTIONAL LAW 67-SEPARATION OF POWERS OF GOVERNMENT; NONJUDICIAL the appellants filed a protest against the FUNCTIONS OF JUDGES. Under Declaration of Rights, art. 8, it is not left to the discretion of judicial officers whether they will or will not perform nonjudicial duties, but they are not permitted to do so. 4. CONSTITUTIONAL LAW 67-SEPARATION OF POWERS OF GOVERNMENT; NONJUDICIAL ACTION OF COURT GRANTING LICENSE TO BET. Code (vol. 3) art. 27, §§ 218-221, authorizing the licensing of betting and bookmaking at and on horse races within the grounds of an agricultural association, etc., on license by the circuit court, held violative of Declaration of Rights, art. 8, as involving the exercise of nonjudicial functions, ministerial and legislative, by the circuit court, particularly in view of section 217. Appeal from Circuit Court, Prince George's County; John P. Briscoe, B. Harris Camalier, and Fillmore Beall, Judges. Petition by the Southern Maryland Agricultural Association for license to make and permit betting, pool selling, and bookmaking on the result of horse races, opposed by Charles P. Close and others. From an order directing that a license issue, subject to revocation, opponents appeal. Order reversed. Argued before BOYD, C. J., and BURKE, THOMAS, PATTISON, URNER, STOCKBRIDGE, and ADKINS, JJ. Jackson H. Ralston, of Washington, D. C. (Frank M. Stephen, of Washington, D. C., on the brief), for appellants. Shirley Carter, of Baltimore, for appellee. BOYD, C. J. On the 14th of February, 1919, the appellee filed a petition, addressed to the judges of the circuit court for Prince George's county, in which it made application to the court "for a license to be granted it to make and permit betting, pool selling, and bookmaking upon the result of running races of horses (under the pari-mutual system of selling pools) on its ground for thirteen (13) days, that is, for the period from April 1, 1919, to April 15, 1919, both days included, Sunday excepted." It states that the appellee is a race course and an agricultural association, and that its grounds are known as the Bowie Race Course, near the town of Bowie, in the Fourteenth election district of Prince George's county. There was filed with the application a recommendation of 35 granting of any license permitting betting, pool selling, and bookmaking upon the results of running races of horses on the grounds of the appellee, as applied for in the petition, and assigned several causes for the protest. The matter was set for hearing before a full bench on the 25th of March, and on that day an order was passed by two of the judges of that court directing that the clerk issue a license to the appellee; the court expressly reserving the right and power to revoke the license, if order be not maintained, etc. Judge Beall noted his dissent. An order for appeal was filed the day the order of the court was passed, and on March 27th the appellants filed a petition in which they asked that the record be removed and an appeal allowed as on writ of error or appeal as the case may be, designating three points of er ror. The appellants at once instructed the clerk to make up the transcript and transmit it to this court, designating what he should include. On April 1st the appellee directed him to include the deed to it and a certificate of the president of the board of supervisors that the persons named in the recommenda On tion above mentioned were qualified voters. The record was completed on April 2d, and received by the clerk of this court on April 3d. On the day it was received the appellants filed a motion to advance the hearing. April 7th a reply to the motion to advance was filed, and on April 8th, the day we met for the April term, we denied the motion. One of the reasons given in the reply was that the attorney who was to appear for the appellee must prepare for argument in another case on the docket of the term. We concluded that we could not hear the case, and give it such consideration as its importance demanded, before the expiration of the time for which the license was issued. [1] A motion to dismiss the appeal has since been made on the ground that it is now merely a moot question. Under the circumstances, we can have no hesitation In overruling that motion. If the appellants' contention is correct that the court had no jurisdiction to pass the order directing the clerk to issue the license, the question may arise in other proceedings as to what protection from section 217 of article 27 of the Code a license so issued affords the appellee. |