Hanhauser v. Pennsylvania & New England Railroad, No. 1; Appeal, No. 390

No. 1; Appeal, No. 390 | Pa. | Oct 5, 1908

Opinion by

Mr. Justice Brown,

The judgment which the court below refused to open was against five terre-tenants, to whose rights, franchises, property and assets the appellant succeeded. The order discharging the rule to open the judgment was made July 3,1907, and the certiorari sur this appeal wits filed in the court below December 18, 1907, within six calendar months from the discharge of the rule. After six months had expired from the refusal to open the judgment the appellant filed its bond on this appeal. ■ We cannot tell from the printed docket entries when it was approved by the court below, and counsel do not agree as to the date. In the motion to quash it is given as February 28, 1908, while in the answer thereto counsel for appellant fix it as March 2, 1908. But without regard to the date of the filing and approval of the bond, it was given on an appeal taken within time and approved. No time is fixed by the act of' 1897 within which such a bond must be given and approved to operate as a supersedeas, except that it must be given within three weeks of the entry of a judgment or decree to supersede “ an execution issued or distribution ordered.” The question on this motion to quash is not whether the approval of the bond superseded any process in the hands of the sheriff at the time it was approved, but whether it was given to operate as a supersedeas. It is on file for the protection of the appellee in the form prescribed by the statute, and it manifestly was approved, that it might operate as a supersedeas. The motion to quash is, therefore, overruled.

The petition of the appellant to have the judgment opened was in the nature of a bill in equity and was an appeal to the chancery power of the court: O’Hara v. Baum, 82 Pa. 416" court="Pa." date_filed="1876-10-23" href="https://app.midpage.ai/document/ohara-v-baum-6235351?utm_source=webapp" opinion_id="6235351">82 Pa. 416; Humphrey v. Tozier, 154 Pa. 410" court="Pa." date_filed="1893-05-01" href="https://app.midpage.ai/document/humphrey-v-tozier-6241446?utm_source=webapp" opinion_id="6241446">154 Pa. 410; Hall v. West Chester Publishing Company, 180 Pa. 561" court="Pa." date_filed="1897-04-12" href="https://app.midpage.ai/document/hall-v-west-chester-publishing-co-6244228?utm_source=webapp" opinion_id="6244228">180 Pa. 561; Lawrence v. Smith, 215 Pa. 534" court="Pa." date_filed="1906-05-24" href="https://app.midpage.ai/document/lawrence-v-smith-6248605?utm_source=webapp" opinion_id="6248605">215 Pa. 534. The appellee demurred to it on eight grounds. Whether the court below considered them all good, or some good and others bad, we do not know. All that we have from it is, “ Demurrer to petition sustained. Buie to, open judgment discharged.” The demurrer was filed on January 23, 1907, and there was ample time for an intelligent disposition of it. To this we are entitled. We sit as a court of review of what has been done by a court below, and in equity proceedings our review and correction are not confined to the decree alone, but extend to the induction or reasoning of the chancellor: Sproull’s Appeal, 71 Pa. 137" court="Pa." date_filed="1872-07-01" href="https://app.midpage.ai/document/sproulls-appeal-6234370?utm_source=webapp" opinion_id="6234370">71 Pa. 137. In this case several important questions were raised by the demurrer. It was the plain duty of the court below to pass upon them, or, at least, to state the ground or grounds upon which the demurrer was sustained, instead of sending the record to us for our consideration and disposition, in the first instance, of the' questions raised by the pleadings. This court is created for no such purpose and very few judges in the courts below seem to think otherwise. We return the record to the common pleas, that there may be made part of it the reasons for dismissing appellant’s petition. When so sent back to us this appeal will be disposed of.

Record remitted.