Chadwick v. Ober

The opinion of the court was delivered, January 9th 1872, by

Thompson, C. J.

The writ of error in this case brings up a record upon which final judgment has not been entered. It was an action on a recognisance of bail in error to which an affidavit of defence was filed by Ober, one of the defendants, in favor of himself and the other defendants, his sureties. No judgment was taken for want of an affidavit of defence or otherwise, and'Ober pleaded nul tiel record, payment icith leave, &c. There the case as to him stands. As to the other defendants there was no service, two nihils being returned on successive sci. fas. Judgment was entered against them in the prothonotary’s office for want of appearance, and as I understand it, liquidated for the whole penalty in the recognisance, and a transcript taken to Allegheny county to make a lien on the property of the defendants, or some of them. The court below on motion, struck off this judgment as irregularly entered, and then these defendants appeared and pleaded to the action, and so the matter now stands as to them. Until the case, thus untried and ready for trial, is disposed of, no writ of error lies. When that is done the whole record can be reviewed in this court, but not until then. If there were nothing else in the Avay but the untried issue tendered by Ober, the case aa7ouM not be reviewable until that was disposed of. The action is a unit, although against several, and there must be final judgment, or something in,the nature of final judgment, on the record before it is ready for review in this court. If this were not so, Ave might have several Avrits of error on a single judgment by the same party in the same case. We have very often said this, and when it is not regarded in practice, we universally quash the writ of error.

Writ quashed.