S. MASSINGHAM CO. v. MUT. DRUG CO. ET AL., 329 Pa. 559 (1938)

198 A. 639

Shipley Massingham Company, Appellant, v. Mutual Drug Company et al.

Supreme Court of Pennsylvania.March 29, 1938.
April 18, 1938.

Equity — Jurisdiction — Process — Service — Nonresident — Action in personam.

In a proceeding in equity, where the decree prayed for is in personam, extra-territorial service upon a nonresident defendant is invalid, even though one of the defendants is served within the jurisdiction of the court.

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Argued March 29, 1938.

Before KEPHART, C. J., SCHAFFER, MAXEY, DREW, LINN, STERN and BARNES, JJ.

Appeal, No. 2, March T., 1938, from order of C. P. Allegheny Co., April T., 1936, No. 2212, in case of Shipley Massingham Company v. The Mutual Drug Company et al. Order affirmed.

Bill in equity.

Petition and rule, by nonresident defendants, to set aside service and to dismiss bill of complaint as to petitioners. Order entered dismissing bill of complaint as to petitioners, before E. W. MARSHALL, GARDNER and RICHARDSON, JJ., opinion by E. W. MARSHALL, J. Plaintiff appealed.

Error assigned was action of lower court in granting prayer for petition.

Charles H. Sachs, of Sachs Caplan, for appellant.

W. W. Stoner, J. M. Stoner Sons, John A. Cline and M. E. Kaufman, for appellees, were not heard.

PER CURIAM, April 18, 1938:

The Court is unwilling to break the unbending rule as to service of process on a nonresident defendant where the decree prayed for is in personam. See Coleman’s Appeal, 75 Pa. 441 Wallace v. United Electric Co., 211 Pa. 473; Vandersloot v. Pa. Water Power Co., 259 Pa. 99; Hughes v. Hughes, 306 Pa. 75 Atlantic S. N. Gas Co. v. Whitten, 315 Pa. 529; Gallagher v. Rogan, 322 Pa. 315; Degan v. Kiernan, 326 Pa. 397. The court below followed this rule and the order setting aside the service and dismissing the bill against the nonresident appellees is affirmed at appellant’s cost.

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