Edelman v. Moser

60 Pa. Super. 637 | Pa. Super. Ct. | 1915

Opinion by

Trexler, J.,

The transcript of appeal from the alderman to the Common Pleas bore no certificate of the justice and the affidavit made by the defendant was not accompanied by the jurat of the alderman. No objection however was made to these defects by the plaintiff until the case was called for trial after the expiration of almost a year. The question therefore for us to consider is not whether such certificate and jurat are required, but whether by his delay in raising the question, the plaintiff has waived his right to object. In Wilson v. Kelly, 81 Pa. 411, cited by the lower court, it was held that the omission to make the affidavit to an award was fátal, but if the objection was not made in time, the appellee was supposed to have waived the irregularity. In that case the delay was from March to Noyember and two terms of court had intervened. The court held that the appellee had by his delay encouraged the appellant to incur expenses in the preparation for trial and had induced the plaintiff by his act of omission to believe that all irregularity was waived. The objection in that case as in this was made when the parties were ready for trial. In Craig v. Brown, 48 Pa. 202, the omission to attach a revenue stamp could not be taken advantage of in an appeal from a justice unless within a reasonable time. It was top late after the expiration of a year. In Com. v. Crum Lynne Iron & Steel Co., 27 Pa. Superior Ct. 508, an objection that the appeal from a tax assessment was taken too late was overruled because the defendant had failed to raise the objection before the plaintiff had' filed his statement and taken a rule for judgment for want of a sufficient affidavit of defense. In the case before us, although the transcript was filed November 15, 1912, nothing was done to call the matter to the attention of the court until the case was called for trial on October 22, 1913.

The courts are loath to allow any suitor to hold an objection in reserve and wait until the opportune moment presents itself and then urge it to the greater damage of his adversary. Matters merely in abatement or suspension of the action or denial of the status of the suitor should be made before the case is ready for trial on the merits. We, of course, do not decide that an omission to certify to the record or to attest the affidavit would or would not be proper ground for objection to the appeal if made within a reasonable time, but by his delay the appellee has waived his right to object.

The other matter raised is that the court erred in not taking off the nonsuit. The action was one of trover and conversion. The reason given for the entry of the non-suit was that the plaintiff failed to make, a demand prior to. bringing suit. The nonsuit was entered October 23, 1913. A motion to take it off was made April 14, 1914. The rules of court of Northampton County provide1 that all' motions to set aside a nonsuit, with the reasons therefor, shall be made and filed five days, after verdict and shall be delivered to the trial judge together with a brief in support of the motion not later than the sec: ond Monday after the trial.. There, is nothing unreasonable in such a rule. It is certainly desirable that the question as to whether the act of the court in entering the nonsuit shall be regarded as a finality or. become the occasion of-further argument should be settled within a reasonable time. In the face of such a rule to wait almost six months is inexcusable. As was stated in Harvey v. Pollock, 148 Pa. 534, the application to take off a non-suit should be made within the proper time. When the plaintiff allowed the nonsuit to stand for the length of “time above indicated and upon application to take it off presented no reasons for asking the grace of the court to relieve him from the application of the rule of court, he was not entitled as a matter of right to have his motion granted even if the reasons urged may have had merit in them.

All the assignments of error are overruled, judgment affirmed.