Leibfried v. Horn ( 1928 )

In answer to plaintiff's statement of claim, defendant filed an affidavit of defense in lieu of demurrer. On July 13, 1927, the court below made the following order: "It is adjudged that plaintiffs have not set out a good cause of action." Plaintiffs petitioned for reargument, and this was granted November 16, 1927. On January 23d, the court below ruled: "after reargument we adhere to our opinion that the statement filed does not set out a good cause of action." Plaintiff appealed to us from this order. Appellee has moved to quash, on the grounds that the only appealable order was the original one of July 13, 1927, and the present appeal was not taken within three months from that time, as required by statute; that an order for reargument does not stay the running of the statutory period: Barlott v. Forney, 187 Pa. 301, 303; Henry's Est., 290 Pa. 537.

Appellee's motion must be sustained, but not on the grounds stated by him. It is obvious that neither order entered by the court below is a final one; to make either of these orders final, it would have to be followed by some such words as "and judgment is now entered for defendant": Smith v. Phila. Reading Ry., 286 Pa. 55, 56. An appeal cannot be taken until after a final judgment has been entered in the case (American Trust Co. v. Kaufman, 279 Pa. 230, 233); upon the entry of such a judgment, plaintiff's right to appeal will arise.

The present appeal is quashed.