33 Pa. Super. 257 | Pa. Super. Ct. | 1907
Opinion by
On September 2, 1902, the plaintiff brought suit on a bond given to the commonwealth by James E. Magee, administrator,
The plaintiff suggested an award made to him by the orphans’ court of Philadelphia county for the amount of 1889.70, with interest thereon from March 16, 1892, to be paid by defendant Magee, administrator, and his default in complying with said order of the court. Subsequently the court of common pleas gave judgment against the defendants for want of a sufficient affidavit of defense. From this judgment Robert J. Barr appealed to this court and it was reversed because the plaintiff’s declaration did not sufficiently aver that the orphans’ court awarded the money to the plaintiff out of the proceeds of the sale of the real estate. The bond, sued on, was only given to secure the faithful appropriation of such money: Com. v. Magee, 24 Pa. Superior Ct. 329.
The next move was on February 6, 1905, when the plaintiff filed a second statement of claim, with leave of court, averring that the award made to him out of the Dalton estate, by the orphans’, court, was to be paid'out of the proceeds of the sale of the real estate, for the payment of debts.
On February 20, 1905, defendant Barr filed an affidavit of defense and on March 27, 1905, the plaintiff’s rule for judgment for want of a sufficient affidavit of defense was discharged by the court, and the plaintiff excepted to this order and appealed to the Supreme Court. Subsequently that court remitted that appeal and the record to the Superior Court for the very plain reason that the amount claimed by the plaintiff was less than $1,500.
On November 9, 1905, the plaintiff’s counsel took a rule upon the defendants to show cause why he should not have leave to file another statement of claim averring an amendment of the adjudication by the orphans’ court on October 31, 1905, to the effect that the money awarded to the plaintiff was out of the proceeds of the sale of the real estate, made for the payment of the debts of the decedent.
On November 15, 1905, the court discharged this rule without filing any opinion. On February 14, 1906, the learned counsel for plaintiff discontinued his appeal, then pending in the Superior Court, and obtained another rule on the defend
The suit is still pending and we have searched the record and fail to find any final order or judgment since the order of March 27, 1905, refusing judgment for want of a sufficient affidavit of defense, from which the plaintiff has a right to appeal. To the order of March 27, 1905, there was an exception and the plaintiff had a right to his appeal, and to have that order of the court passed upon by the Superior Court. But after appealing from that order to the Supreme Court, and after that court had sent the appeal to the Superior Court, the learned counsel, on February 14, 1906, appeared and discon
The plaintiff is not out of court by any of the above recited orders because his original statement and his amended statement of February 6, 1905, are still upon the record. What, then, is he asking us to do ? The answer is, to reverse the action of the court below in discharging the rules of February 14, on April 3, 1906, and the rule of April 27, 1906, on May 9, 1906. But, he has no exception to either of these orders and they are in no sense final judgments, orders or decrees from which an appeal will lie. At most, he was only entitled to except to these orders and then pursue his case to a final judgment or order from which he could appeal. Of course the plaintiff has another course open to him; if he started wrong, and the court in its discretion will not allow him to amend, so that he feels safe in going to a final judgment, he may discontinue his action, pay the costs and begin de novo.
That the present appeal cannot be sustained is, we think, very plain: Yost v. Davison, 5 Pa. Superior Ct. 469. “ Appeals should not be resorted to when the effect is to bring cases into the appellate courts by instalments.”
“ An appeal does not lie from the refusal to strike off a municipal lien for the reason that there is no definitive decree, nor from an order permitting an amendment, the action being still pending:” Phila. v. Christman, 6 Pa. Superior Ct. 29. See, also, National Transit Co. et al. v. Pipe Line Co., 180 Pa. 224; Lauer et al. v. Lauer Brewing Co., 180 Pa. 593. The motion to quash this appeal must be sustained.
The appeal is quashed and the appellant directed to pay the costs.