Koenig v. Bauer

The opinion of the court was delivered by

Agnew, J.

It has been said so often that it will scarcely bear repeating, that the proper course when the recognisance of an appellant is defective or invalid, is not to dismiss the appeal, but to rule him to amend or perfect it, and to dismiss only as the penalty of neglect or refusal. The right of appeal and of trial by jury is too precious to be frustrated by the ignorance, incompetency or malice of inferior magistrates and officers: Means v. Trout, 16 S. & R. 349; Huntingdon Borough v. Jackson, 2 Penna. R. 431; Bream v. Spangler, 1 W. & S. 378; Adams v. Null, 5 Id. 363; Ihmsen v. Mon. Nav. Co., 3 Casey 267. It is not safe or expedient to rely upon a discarded practice, or upon overruled cases. This is sufficient to dispose of the 1st and 2d assignments of error.

The 3d error is unaccompanied with the bill of exceptions, and is therefore informally assigned. But I may say, without a specific rule of the court to regulate the practice in this respect, it is the defendant’s right under the Act of Assembly to claim and give evidence ©f the damages he has sustained by reason of his removal from the premises. No other notice than the law itself, was therefore necessary to be given by him to his landlord. Tho law prescribes the issue, which is to be tried in the same manner as an action of ejectment, and directs the jury if they find for the tenant, to assess the damages caused by his removal.

The 4th error is not sustained. The examination of the defendant’s daughter in surrebuttal, after she had been examined before, was a matter within the sound discretion of the court. Slight explanations will often explain-apparent discrepancies, or exhibit a witness’s truthfulness; and a court will not suffer truth to be smothered by form, when a discreet exercise of its power will prevent it.

We discover no error in the charge of the judge or his answer to the plaintiff’s points, as set forth in the 5th and 6th assignments of error. The court was right in refusing permission' to the plaintiff to take a nonsuit. The defendant had a right to the verdict, both to be restored to possession and to recover his damages for removal.

None of the errors are sustained, and the judgment is affirmed.