Levine v. Roth , 276 Pa. 244 ( 1923 )

Per Curiam,

Appellants specify two alleged errors: (1) an order, dated December 1, 1921, entering judgment for defendants under section 20 of the Act of May 14, 1915, P. L. 483; and (2) an order, dated May 19, 1922, discharging a rule to vacate the judgment and permit plaintiffs to amend their statement of claim.

Complaint is made that the judgment was entered on affidavits of defense in the nature of demurrers, without special notice to counsel for plaintiffs, and without allowing them an opportunity to amend. The section of the Practice Act, above referred to, provides that, when questions of law are raised by affidavit of defense, they may be “set down for hearing and disposed of by the court,” and that, inter alia, “the court may enter judgment for defendant, or make such other order as may be just.” After this, there is a provision that, if the court decides the questions of law against defendant, “he may file a supplemental affidavit of defense,” but nothing is said as to allowing amendments to plaintiff’s statement of claim, when such questions of law are decided against him; that is left within the discretion of the court below, and, when review of the exercise of this discretion is sought on appeal, a plain abuse must appear to warrant reversal.

Here, the appeal was not taken until August 5, 1922, more than six months after the date of final judgment. Plaintiffs now endeavor to bring the case within the six months’ period, allowed by law for an appeal, by assigning, under their second specification of error, the discharge of the above-mentioned rule to set aside the judgment, and by counting the six months from May 19, 1922, the date of such discharge. Then, having thus attempted to establish their appeal, they seek to raise points relevant to their first specification of error; but the time for appeal cannot be extended, and the questions adjudicated in the original judgment brought up for review, in this way (Opening of Parkway, 267 Pa. 219, 225, 226; In re Assessment of Lands of Woodward & Williamson and the Reynolds Estate, 274 Pa. 567), which is all that need be said concerning the first assignment of error. As to the second assignment, plaintiffs’ petition, in support of the rule to vacate the judgment and allow amendments, fails to set forth in any manner the changes which appellants desire to make in their pleadings; in short, there is nothing on the record, properly before us, to convict the court below of error.

The appeal is dismissed.