Road in Benzinger Township , 135 Pa. 176 ( 1890 )

Opinion,

Mr. Chief Justice Paxson:

The only assignment of error is, that “ the court erred in making the order of June 1, 1888, without the award of a procedendo by the Supreme Court.” The assignment does not set out the order of June 1st, and in this it is defective. It is, however, printed upon the same page of the paper-book, and is as follows: “Exceptions to the confirmation overruled, and report of viewers confirmed absolute.” It will thus be seen that no objection appears to this order save the single fact that it was made in tbe absence of a procedendo from this court.

To understand this fully, it is proper to state that the report of this same jury of view was before ns in 1887, and that tbe error assigned then to the action of the court below was this: “ The court erred in confirming only a part of the report of viewers, and in ordering the road to be opened to an intermediate point, instead of confirming or rejecting the whole: ” Benzinger Tp. Road, 115 Pa. 436. Tliis court, in an opinion by our late Brother Trunkey, reversed this order, upon the ground that the court could not approve of a part only of the road, it should approve or reject the whole ; and that to make an order opening only a portion of said road was error. The order of this court was as follows : “ The order of confirmation dated May 27,1886, is reversed.” No procedendo was awarded ; it was probably an oversight, as our order left the case unfinished in the court below. Notwithstanding the emission of a procedendo, that court resumed the consideration of the case, resulting in the order of confirmation of June 1, 1888. We do not see any error in this. The necessity of further proceedings was indicated by our Brother Tuunkey in bis opinion, when he said: “ The court should either unqualifiedly approve or disapprove the road laid out and returned. Unless satisfied of the necessity for the road, under the circumstances, the court may refuse approval, notwithstanding the favorable report of the viewers.”

As before observed, our order left the case undisposed of in the court below. We did not decide the main question. Our decision was upon a single point only, viz., that the road could not be confirmed and opened in part. The objection that the record was sent down without a procedendo is purely technical, and the court below was entirely right in proceeding to dispose of the case. Even were a procedendo necessary, we would award it nunc pro tunc. Courts pay less regard to mere technicalities now than formerly, and will seldom allow them to interfere with the justice of a cause. As long ago as Albright v. McGinnis, 4 Y. 517, it was held that - where a judgment of the Common Pleas had been reversed on error, but the record not remitted, nor a venire facias de novo awarded, and there had been a trial on the merits in the Common Pleas, this court would not interfere with the judgment, but would order the record remitted with a new venire, nunc pro tunc, Tilghman, C. J., saying: “ This court is of opinion that, inasmuch as it had power to remit the record, and award a venire facias de novo, and as the parties have proceeded to a trial, and the cause has been tried on its merits, it is proper that an order to remit the record to the Court of Common Pleas, and an award of a venire facias de novo, should now be entered as of the term when the first judgment was reversed.” These are words of sound wisdom, and entirely applicable to the case in hand. No possible good would result from reversing the court'below upon this bald technicality. It would only compel that court to do its work over again, with the same result, and with added expense and vexation to the parties in interest.

Order affirmed.