275 Pa. 40 | Pa. | 1922
Lead Opinion
Opinion by
Plaintiff brought suit in Philadelphia County against the defendant, whose principal place of business was in Westmoreland, though it maintained a sales force in the former, occupying a leased office. It owned the
Our first' consideration must be given to the motion made to quash the proceeding on the ground that the
Rulings of the court below are not to be reviewed in parts, but all alleged errors will be considered at' the end of the proceeding. Temporary hardships may be worked by such requirement, as a correct determination of some intermediate question raised might relieve from further action, necessary for the protection of the litigant’s rights. This has been recognized in certain cases, as by permitting an appeal where an order to account is contested, — review being now allowed before the actual stating of it (Act March 30, 1921, P. L. 60, amending Act June 24, 1895, P. L. 243, — for the previous rule, see Miller v. Belmont P. & R. Co., 268 Pa. 51); from refusal to enter judgment for want of a sufficient affidavit of defense (Act April 18, 1874, P. L. 64); and where the court has permitted a judgment t'o be opened. Act May 20,1891, P. L. 101. But these, and like cases, are statutory exceptions, and do not modify the general principle, denying appeals from interlocutory orders.
It is urged that the refusal of judgment non obstante veredicto, after finding for the plaintiff on the preliminary issue, makes applicable the provisions of the Act of
Unless there is some legislative mandate to the contrary, a review must await the determination of the suit, though inconvenience to a party may result1. This has been frequently held by our court. Thus, the correctness of a ruling dismissing a statutory demurrer must await the entry of a final judgment (Com. v. Moran, 251 Pa. 477), and the same is true when like pleading is involved in an equity proceeding (Stuchul v. Stuchul, 233 Pa. 229; Arnold v. Russell Car & Snow Plow Co., 212 Pa. 303), or criminal case (Com. v. Weber, 63 Pa. Superior Ct. 75); and in cases similar to the one at bar, where there has been a refusal to set aside service, on motion: Platt v. Belsena Coal Mining Co., 191 Pa. 215; Price v. Davis Coal & Coke Co., 208 Pa. 395; P. & R. R. R. Co. v. Snowdon, 161 Pa. 201; Griffiths’s Est., 75 Pa. Superior Ct. 295.
Again, it is insisted that the upholding of the jurisdiction is final as to the defendant, since his proceeding upon the merits will constitute a waiver of his complaint as to service. It has been said that such a result' will follow where, after a refusal to set aside, a voluntary continuance of the proceeding by the defendant appears: McCullough v. Ry. Mail Assn., 225 Pa. 118; Swecker v. Reynolds, 246 Pa. 197. It is to be observed that in these
The proper rule would seem to be that if a defendant proceeds on the merits, without exceptions to the ruling of the court on his objection to the jurisdiction, and takes steps inconsistent therewith by entering a general appearance, he waives his complaint as to the jurisdiction (1 C. J. 44); but if he excepts to the preliminary decree and files his affidavit of defense only as compelled and directed by the court, the contrary is true. This is what was said in effect by our court in Coleman’s App., 75 Pa. 441, 460: “The other questions in the cause may be very briefly disposed of. Walton Dwight having been served with process according to the order of the court, moved the court to vacate and strike off the order of service, and to set aside the service made upon him in pursuance thereof. This motion was refused by the court in Lycoming County. He then appeared de bene esse, reserving all exceptions to the order and service. When compelled by rule to answer, he did so, under the same special exception. It is clear that he could not appeal from the interlocutory order of the court, refusing his first1 motion, and it is equally clear that any and every step which he might afterwards take for his own benefit or security in the course of the proceedings cannot estop or preclude him from setting up the want of jurisdiction at any stage. It was an objection which lay at the foundation of the whole case, and if it had gone on to a final decree either in Lycoming or Tioga County, the same question would have been open upon an appeal to this court.” This power to preserve the right to review by refusing to take any additional step except under order of court is recognized in Lycoming Fire Ins. Co. v. Storrs, 97 Pa. 354, — a case cited as authority in McCullough v. Railway Mail Assn., supra. There, it appeared two appeals were taken, one
We are not unmindful of the decision in Vandersloot v. Pa. W. & P. Co., 259 Pa. 99, followed in Bird v. Sleppy, 265 Pa. 295, where it appeared upon the face of the equity pleadings that the court below had improperly sustained a service upon a nonresident under the Act of April 6,1859, P. L. 389, and its action was set aside, but those cases must rest upon their own facts, and a like situation is not presented here.
Whether the rights of defendant are lost or not by proceeding involuntarily by direction of the court, the decisions on the law side are uniform in holding that the review cannot be had until a final judgment has been entered. It follows that the present appeal must be dismissed.
The appeal is quashed.
Dissenting Opinion
Dissenting Opinion by
The defendant is a coal mining company located in the County of Westmoreland. It has a sales agent in Philadelphia, who there occupies an office. He solicits and takes orders for some of the coal which the defendant mines. The writ in this case was served upon him. I would hold, under these circumstances, the defendant is not within the jurisdiction of the courts of Philádelphia County and cannot there be sued. I would further hold, where service is made upon a corporation, and it denies the jurisdiction of the court issuing the process, and the court decides it has jurisdiction, that this is an appealable order, and not interlocutory, and that the