First National Bank v. Fair , 1919 Pa. Super. LEXIS 347 ( 1919 )

Opinion by

Trexler, J.,

This was suit on a note. Tbe hearing was held by tbe justice of tbe peace, on September 27,1917. On January 29, 1918, a transcript was filed in tbe common pleas and on February 28th, a fi. fa. was issued. On March 2d, tbe defendant filed a petition asking tbe court to strike off tbe transcript alleging, among other things which require no comment, that tbe defendant bad no notice of tbe entry of tbe judgment, although tbe justice bad promised to advise him when that was done. An answer was filed to this rule. On March 8th, tbe defendant caused a writ of certiorari to be issued and the whole proceeding with all things touching tbe same were removed to tbe common pleas. Exceptions to tbe record were filed and answer made thereto by tbe defendant. On June 4th, both rules were argued together. On June 20th, tbe court entered tbe following order, “Tbe rule to set .aside tbe judgment of tbe justice of tbe peace is discharged. Tbe rule to show cause why tbe judgment should not be stricken off and tbe transcript thereof stricken from tbe records is converted into a rule to show cause why an appeal should not be allowed nunc pro tunc, which said rule is made absolute and tbe defendant allowed to take appeal nunc pro tunc.”

Tbe refusal to set aside tbe judgment in tbe certiorari proceedings ended tbe matter. Tbe proceedings having been removed from tbe justice to tbe common pleas, upon tbe affirmance of tbe judgment by tbe discharge of tbe rule, tbe justice’s judgment became a judgment of tbe common pleas: Robbins v. Witman, 1 Dallas 410; Essler v. Johnson, 25 Pa. 350. Tbe court bad no right to grant tbe appeal. Tbe two remedies certiorari and appeal cannot both be employed. This was decided in City v. Kendrick, 1 Brewster 406, and that decision has been generally followed by tbe courts of common pleas of this State. (See P. & L. Dig. of Dec. 17647, Malitz v. Grabofsky, 27 Pa. Dist. Rep. 394.)’ Although that decision is not binding upon us, its reasoning is convincing. We quote, “If we allow both remedies to a defendant, what is to become of the appeal when the certiorari is heard and the judgment affirmed, as in one of these cases? Upon the affirmance of the judgment the plaintiff is entitled to his execution against the defendant, and to his scire facias against the bail. Unless we can stay these proceedings until the appeal shall be tried, it is very clear that the plaintiff may make his money at once, and that the appeal is to all intents and purposes killed. It would seem very clear that we cannot stay the execution or scire facias, and, therefore, the defendant is no longer concerned in the fate of his appeal. This course of reasoning illustrates the impossibility of giving effect to both remedies, and relieves us of the necessity of considering whether the issuing and service of a certiorari do not so effectually remove the record as to leave nothing for the appeal to touch. It is very clear that if regularly issued and served, all subsequent proceedings by the inferior court are void, and in England if any further steps are taken towards execution an attachment lies. (Vide cases cited 5 Pet. Abr. 261-2.) The same general principle was recognized in Pennsylvania; Ewing v. Thompson, 7 Wright 372. If both remedies were allowed and both prosecuted to final judgment, there might be a judgment for plaintiff in the one and for the defendant in the other proceeding.” If the defendant had no right to appeal, the court could confer no such right.

Apart from the above phase of the case, the court had no right to change the rule to strike off the transcript to one for an allowance of an appeal nunc pro tunc. The petition had no merit for the transcript of the judgment of the justice could not be stricken off unless absolutely void on its face: Dailey v. Gifford, 12 S. & R. 72; Drum v. Snyder, 1 Binn 381; Doerr v. Graybill, 24 Pa. Superior Ct. 321; McKinney v. Brown, 130 Pa. 365; McIlhaney v. Holland, 111 Pa. 634; Hughes v. Clark, 35 Pa. Superior Ct. 518; Lacock v. White, 19 Pa. 495. Assuming that the defendant was wronged by the justice of the peace, it was his duty when that knowledge came to him to act promptly. It is true that his petition to strike off the transcript followed in a few days, but he mistook his remedy. Almost four months after he had been apprised of the entry of judgment, the court without any request of record made the order.. It was then too late to consider the petition to strike off the transcript as a petition for an allowance to appeal nunc pro tunc made within proper time. This we think was not the exercise of proper judicial discretion. The defendant should have presented his petition for the allowance of an appeal nunc pro tunc promptly, at least before the expiration of twenty days after notice: Wahl v. Poore, 46 Pa. Superior Ct. 630; Taylor v. Smith, 2 Clark 318. The court should not have relieved him from the effect of his not moving promptly or properly.

The order of the court allowing an appeal nunc pro tunc is reversed. Appellee for costs.