4 Rawle 241 | Pa. | 1833
The opinion of the court was delivered by
This is an appeal from the sentence of the Common Pleas, of Montgomery county, decreeing a separation from bed and board, and alimony. The decree was made the 28th of November, 1822, and the appeal taken by the respondent, was filed in the Supreme Court, the 12th of January, 1833, and the affidavit was filed the 5th oí March, 1833. The case comes before the court, on a rule, granted the 11th of March, 1833, to show cause why the appeal should not be dismissed, because no affidavit was made by the appellant, and jHied ivith the record, that the said appeal was not intended for delay.
In Kreider's Case, 3 Rawle, 205, it was decided, that an appeal to the Supreme Court, should be filed at the next term after it was taken, yet, if it be done during the actual session of the court, whether sitting by adjournment or otherwise, it is in time. The court was sitting by adjournment the fifth of March, 1833, so that the appeal, although not perfect at the time the record was filed, was perfected the same term at which it was taken. The act of the 11th of March, 1809, which directs the oath or affirmation, prescribes, that any person appealing, or purchasing any writ of error, shall make oath or affirmation, to be filed with the record, that the same is not intended for delay. It is the usual, and certainly the mostconvenient'practice, to make the affidavit when the party appeals or purchases his
The objection, that an affidavit is not required, was not much pressed. The act of 1809 is general, and requires an oath or affirmation in all cases of appeals, or writs of error. I see nothing in the act of 1815, which shows that the legislature intended that an affidavit should be dispensed with in a case like the present.
Rule discharged.