In re Road in Salem Township

Mr. Justice Sterrett

delivered the opinion of the court,

The jurisdiction of the Court of Quarter Sessions in road cases is purely statutory, and hence the mode of proceeding prescribed by the law should be strictly pursued, especially in all matters that are intended to alfect- individuals or the general public with notice. The third section of the general road law of 1836 requires the viewers to make their, report at the next term -or session of the court after their appointment. The object of this requirement is neither doubtful nor unimportant. As has been repeatedly intimated, the Act means just what it says. It was intended to fix definitely a time when all parties interested may have an opportunity of examining the report with the view of excepting thereto, or taking such other-action as may be deemed necessary. If for any sufficient reason the report cannot be made to the next term, the proper course is to continue the order to view and make it returnable to the next succeeding term ; but this must be done before the order has expired, that is, before or during the sessipn of court to which it is returnable. If that term is permitted to pass without the presentation of the report, or an order extending the time for making the same, the order to view becomes, ipso facto, inoperative, and with it the authority of the viewers ceases. The court itself has no power subsequently, by a nunc pro tunc order or otherwise, to resuscitate the defunct order to view. If anything further is attempted it must be done by proceeding de novo.

In the case before us, the order was returnable to May sessions 1878, but during that term, and doubtless for reasons satisfactory to the court, it was extended and made returnable to September sessions, which was a fixed period of two weeks ending on the 14th of that month. The report of viewers was not then presented, nor was there any order extending the time for making it. On the following Monday, however, at an adjourned session of the court, the following order was made for the purpose of infusing new life into the already defunct order to view, viz.: “ Sept. 16th 1878, on motion, the return of viewers in this case is continued until next sessions, and the above order is filed at this time with the same effect as though filed on the first day of last term.” The fact that the term, at which the report should have been presented, had passed, and an adjourned court was then being held, is distinctly recognized in the nunc pro tunc order by which it was sought to revive a process, which had expired by its own limitation.

In making that order, receiving the report of the viewers and subsequently confirming the same on January 24th 1874, there was manifest error; but, have we the power to correct it on certiorari issued more than , two years thereafter? We are asked to quash the writ because it was not sued out within the two years required by the Act of April 1st 1874, Purd. 1873, pi. 1. That Act, with two or three unimportant verbal alterations and change of time from seven to two years, within which appeals, writs of error and certiorari may be effectually taken, is a re-enactment of the statute of 1791; and we have no doubt cases like the present are within its purview. The language of the Act, “ any judgment, in any real, personal or mixed action,” was evidently used in the comprehensive and not in the narrow or restricted sense of the words employed. The word “ judgment ” was doubtless intended to embrace not only judgments, strictly so called, but also definitive decrees and oiders in the nature of judgments. The word “ action ” is also to be understood in its comprehensive rather than in its strictly technical sense. The writ of certiorari was not specifically mentioned in the Act of 1791, as it is in the Act of 1874 ; and in Young’s Petition, 9 Barr 215, it was contended that such writs were not even within the purview of the Act, and therefore, unlimited as to time. That was a proceeding by petition in the common pleas to prove a contract for the conveyance of land against the executors of a decedent. Prom the decree entered in favor of the petitioner in 1828, an appeal was taken and certiorari issued to bring up the record more than seven years thereafter. A motion was made to quash on the ground, 1st, that there was no allocatur, and 2d, that more than seven years had elapsed since the decree. In sustaining the motion on the second ground Mr. Justice Rogers said: “This proceeding, it is true, does not come within the letter, but it certainly does within the spirit of the Act. The object of the Act is to limit the time when a party shall be permitted to review a judgment or decree of a subordinate court. This object would in a measure be defeated if this court would be at liberty to reverse a decree merely because the proceedings had been removed by certiorari and not by writ of error. The only effect of the certiorari in this case is to remove the proceeding for the inspection of the court. In substance it is an appeal from the decision of the common pleas, a proceeding to obtain a rehearing on the merits, and as such, it unquestionably comes within the true intent and meaning of the Act of April 1791, which prohibits this court from reversing proceedings after seven years. . . . The Act of Limitations, as well to writs of error or certiorari as in other eases, is a most beneficial statute, being a statute of repose, and absolutely necessary to quiet titles.”

Neither the proceeding nor the writ in that case was within the letter of the Act, but both were very properly held to be within its spirit. In re-enacting the statute in 1874, and including therein writs of certiorari, the legislature doubtless intended that it should receive the same liberal construction that had theretofore been given to it. By ignoring the spirit of the Act and giving to the words employed a strictly literal construction, proceedings which have heretofore been regarded as wdthin its pnrview would be excluded from its operation.

We are of opinion that the ease is clearly within the statute, limiting writs of error, certiorari, etc., and hence we are powerless to correct the error justly complained of, and the motion to quash must prevail.

Writ of certiorari quashed.