48 Pa. 202 | Pa. | 1864
The opinion of the court was delivered by
— These two writs of error present hut one question. What is said in regard to one is therefore equally applicable to the other.
The motion to quash the appeals was not made'until more than a year after they had been entered, and after three full terms had expired. It was too late, and there was no error in refusing to sustain it. In Shank v. Warfell, 14 S. & R. 205, it was said that a motion to dismiss an appeal, on account of a defective recognisance, is somewhat in the nature of a plea in abatement, and should be made in reasonable time, otherwise it is presumed the appellee waives all exceptions to the recognisance. The remark may be made with equal force when a motion is made to dismiss an appeal for w;ant of a sufficient certificate to the magistrate’s transcript. If the appellee will take advantage of such a defect he must be vigilant.
But the court erred in giving a judgment of non pros., and in refusing to take it off on the application of the plaintiff. This is not because an appeal from the judgment of a justice of the peace is not an action within the meaning of -the rule of court, and liable to be non prossed if a declaration be not filed within a year from the first day of the term to which it is entered. We think it is. The rules of pleading apply as well to appeals as to actions brought in court by original process, and the mischief sought to be remedied by the rule of court is quite as great in one class of cases as in the other. But the judgment of non pros, was entered, while the rule to show cause why the appeal should not be dismissed was pending. That rule necessarily suspended all proceedings in the case. Until it was disposed of nothing else could be done. Certainly the plaintiff could not be required to declare, for a declaration would have been a waiver of any objection to the sufficiency or regularity of the appeal.
For this reason the judgment must be reversed.
The judgment in each case is reversed, and the record is remitted, with instructions to reinstate the appeal and proceed according to law.
