Firestone Auto Supply Stores v. Fitch , 1942 Pa. Dist. & Cnty. Dec. LEXIS 333 ( 1942 )

Leach, P. J.,

—The record shows that defendant took an appeal first and certiorari thereafter on the same day. The exceptions state that the appeal was duly filed to this court.

- A party cannot have an appeal from the judgment of a justice and certiorari at the same time, and he will be held, as a rule, to the proceeding first taken: Philadelphia v. Kendrick, 1 Brewst. 406; Mills v. Rice, 1 Schuyl. Leg. Rec. 126; Russell v. Shirk, 3 Pa. C. C. 287.

Now, October 21, 1942, exceptions dismissed and judgment so far as the certiorari is concerned in favor of plaintiff. This is without prejudice to the right of defendant to pursue his appeal.