48 A.2d 149 | Pa. Super. Ct. | 1946
Argued April 10, 1946. The appellant was the defendant in an action of trespass before a justice of the peace from whose judgment he appealed to the court of common pleas. He has appealed to this court from the order of the court below quashing his appeal and refusing his motion to perfect the appeal. The single question involved is whether the appeal to the court of common pleas was perfected within the statutory period of twenty days after judgment.
The plaintiff sued in trespass to recover damages sustained in an automobile collision. The justice of the peace entered judgment for the plaintiff in the amount of $254.30 on March 12, 1945. On March 23, 1945, the defendant filed an affidavit on appeal together with a bond in the amount of $50.00 conditioned for the payment of all costs that had accrued or that might accrue. The transcript, filed in the court below, shows the costs accrued on that date amounted to $8.00 and defendant paid only $1.00, which was the fee for the transcript and certificate. A receipt is attached to the transcript acknowledging payment of $7.00, the balance of the costs, *168 on April 14, 1945. On April 9, 1945, plaintiff moved to quash the appeal. The learned court granted the motion, holding that the appellant had not complied with statutory requirements.
Appeals from the judgments of aldermen and justices of the peace are governed by the Act of March 20, 1810, P.L. 208, 5 Sm. L. 161, § 4, 42 Pa.C.S.A. § 662, which provides that either party has the right to appeal ". . . within twenty days after judgment . . ." Two methods of appeal were open to the defendant. He could have paid the justice's costs, and given bail absolute in double the probable amount of costs accrued and likely to accrue as provided by the Act of March 20, 1845, P.L. 188, 42 Pa.C.S.A. § 921, or he could have given bail absolute for the payment of debt, interest, and costs that had accrued and would accrue on affirmance of the judgment, in which event he would not be required to pay any costs before taking the appeal. (1885 June 24 P.L. 159, § 1; 1907 May 29 P.L. 306, § 1, 42 Pa.C.S.A. § 928) But as stated in Lentz v. Kittanning Real Estate Company,
And in New Castle Metal Products Company v. Campbell,
Appellant in the instant case apparently intended to adopt the former method, for his bond in the amount of $50.00 was sufficient to cover costs likely to accrue, but unfortunately he neglected to perfect his appeal, within the statutory period of twenty days after judgment, by paying to the justice of the peace the costs already accrued.
He urges upon us, however, that it was within the court's discretion to allow him to perfect his appeal nunc pro tunc. It is true that the court below had such discretionary power: A.J.Kutz Son v. Skinner,
The order is affirmed.