Ward v. Letzkus , 152 Pa. 318 ( 1893 )

Opinion by

Mr. Chief Justice Paxson,

The appellant, having taken his appeal from the judgment of the justice of the peace within the time required by law, neglected to file the transcript in the court of common pleas until after an intervening return day had passed. The only reason given for this neglect was the forgetfulness of his attorney. Upon the application of the appellant the court below granted a rule to show cause why the appeal should not be filed nunc pro tunc, and several months after the return day had passed made the rule absolute. This is the error complained of.

We are not advised as to the ground upon which the court below made this ruling. The act of May 18, 1871, P. L. 938, provides that all appeals from the judgment of justices of the peace in the county of Allegheny shall be filed in the court of common pleas on or before the monthly return day in said court next ensuing. This is the command of the act of assembly, and without saying that under no circumstances could the court of common pleas allow an appeal nunc pro tunc, we are quite sure it should not have been done in this case. No reason is given beyond the neglect of counsel. The counsel was the mere agent of the client, Houk v. Knop, 2 Watts, 72, and the neglect of the one was the neglect of the other.

The order of the court below allowing the defendant to enter his appeal nunc pro tunc is Reversed and set aside.