Borough of Millvale v. Poxon

Opinion,

Mr. Justice Hand :

This is a writ of error to an issue framed to ascertain the damages sustained by plaintiffs below by reason of a change of grade of Lincoln avenue, Sedgwick street, and Fornoff alley, in the borough of Millvale. The proceedings are under the act of assembly of May 24, 1878, P. L. 129.

The first specification of error is to the refusal of the court to quash and dismiss the appeal from the judgment of the court confirming the award of viewers, in pursuance of the motion made on March 24,1888. The reasons urged in support of the motion were: (1) That the act of assembly (1878) does not authorize an appeal; (2) the appeal was not entered within thirty days of filing the report; (3) the appeal is an appeal from the judgment of the court which can be taken only to the Supreme Court. The court below very properly disregarded the first reason, because the constitution of the state gives the light of appeal, and it is provided for in the act of assembly of June 13, 1874, P. L. 283. The other reasons (second and third) were properly taken, and we must sustain the first assignment of error. Inasmuch as under the peculiar circumstances-of this case injustice will thereby be done and the plaintiffs below deprived of a constitutional right, we shall send this-case back for a re-trial, and shall preserve all the rights of the' parties. The difficulty in the case on the record grows out of the confusion of practice which the record shows ; such confusion that we can neither affirm nor reverse the case without establishing a bad precedent except by the course herein indicated.

The facts are as follows: October 9, 1886, plaintiffs filed their petition under act of May 24, 1878, praying for the appointment of viewers to assess damages. February 26,1887„ report of viewers was presented and confirmed nisi, to become absolute in ten days if no exceptions were filed. March 5, 1887, plaintiffs appealed from the award of viewers, and the record says affidavits were filed. April 9,1887, the petitioners having filed an appeal and statement, the respondent is ordered to file a plea and traverse within ten days after notice thereof. After this proceeding, on April 18, 1887, the borough was allowed to file a motion to quash and dismiss the appeal, and rule was granted, and that rule was made absolute. The reasons urged were: (1) That no exceptions having been filed to the report of viewers the report should be made absolute; and (2) the act of assembly allows no appeal. The third exception was that the appeal was not supported by affidavit. We remark, as to this exception, that whatever force it might have when properly urged and at a proper time, it must in this record be taken to be untrue, and the action of the court in subsequently allowing the appeal must be taken as conclusive on this point. It is not now an open question, and should not be considered in another trial. If a party proposes to take advantage of such a technical defect, he must act promptly and not wait until after the court has ordered an issue and plea.

The fundamental error of the court which deprives these proceedings of support after the issue and traverse was ordered, was in sustaining the first two reasons urged on the motion to quash. . The first, that because no exceptions were filed the report must be confirmed absolutely, was not well taken, because an appeal had been properly entered. The second reason would, if true, make the act of assembly uneonstitutional, as being in violation of section 8, article XVL, of the constitution.

1 The court undoubtedly discovered their error in this regard, and, in order to remedy it, fell into another error, which was in construing the ,aet of 1878 to give the right of appeal upon a judgment which was confined only to a judgment on exceptions filed. The act of 1878 is complete in itself as to the preliminary mode of procedure in a case of this kind: it must be by viewers and exceptions filed to the report, in the first instance, if exceptions are needed by either party to meet any error or irregularity in the proceedings or report of viewers; but it does not provide for. an appeal where a party’s rights are to be determined by a jury. That was already provided for by tbe act of June 18,1874, under the new provision in the constitution. If the issue had been framed under the appeal first filed by the plaintiffs below, both acts of assembly would have been followed and the proceedings regular in every respect. The court below, when they discovered this, should have granted a rehearing on the motion to quash, and would have then restored the appeal. This can still be done.

It is not necessary for us to enter into the merits of this case. The case must go back for a correction of the record and a new trial thereon. The first appeal of the plaintiffs of March 5, 1887, should bo restored and allowed to stand, and an issue framed thereunder for a trial before a jury. It is to be regretted that the case must take this course, but we see no other proper course to be pursued under the condition of tbe record.

The judgment is reversed and a procedendo awarded.