In re City of Pittsburg , 179 Pa. 630 ( 1897 )

Opinion by

Mr. Justice Fell,

There is no foundation for the complaint that the appellant was denied a hearing in the common pleas. She had the fullest opportunity to be heard, and the record of the proceedings in court indicates a desire on her part to avoid a hearing and decisión of the question. The exceptions to the report of the viewers were in substance that the assessments were based upon the cost and not the value of the improvements, and that they Avere excessive and inequitable; and that they Avere improperly made because the viewers had not from personal inspection ascertained the character of the work, the situation of the property, the adaptability of the pavement to the grade of the street, and the particular -benefit or damage resulting to each property. The first time these exceptions appeared on the list their argument was postponed at the request of the appellant’s counsel. The second time they were ready for argument, counsel asked the court to appoint a commissioner to take the testimony anew, and this request being refused they declined to proceed Avith the argument or to point out their objections to the report. The report was then confirmed, but upon information that the exceptions filed by one of the parties had through mistake not been placed on the argument list and an opportunity for a hearing given him, the court set aside the confirmation of the report and. reopened the case as to al] the parties excepting, and the testimony taken before the viewers was filed. When the case again came on for hearing, counsel for the exceptants neither argued their exceptions nor stated to the court any reason for setting aside the report, but raised new questions not before us now. The report was then confirmed, and properly confirmed. The appellant has been given everything she was entitled to, and has received all she asked except a decision in her favor without reason therefor.

The proposition that the proceeding before the viewers, the appearance, the introduction of testimony and the filing of exceptions, were preparatory only and preliminary to a hearing before the court is not sustained by the decision in Travers’s Appeal, 152 Pa. 129, or Pittsburg Manufacturing Co.’s Appeal, 158 Pa. 464, and it is wholly untenable. This is the proceeding provided by the act of 1891 for the ascertainment of benefits and damages, with the right of appeal, and to demand a trial by jury. The hearing by the court is upon exceptions to the report of viewers, and the court has power to modify or change its assessments or to refer the report back to the same or to a new jury. It is the duty of thé court to superAÚse and review the work of the viewers and to correct errors to which its attention is called by the exceptions filed, but it is not its duty to direct the testimony to be taken anew when that heard by the jury is before it, or to proceed de novo and consider all the testimony taken and make a new award. Its work is that of review on exceptions filed. Every presumption is in favor of the award, and unless errors in proceedings or findings are pointed out the report should be confirmed.

The decree is affirmed at the cost of the appellant.