47 Pa. Super. 411 | Pa. Super. Ct. | 1911
Bail for appeal from the judgment of the justice of the peace was entered on October 13, 1910, and the transcript should have been filed in the common pleas on or before the next return day, which was November 7: Act of May 18,1871, P. L. 938. The excuse given by the defendant for not filing it was that the justice promised to mail it to him, but did not do so. The defendant testified that he did not receive the transcript, while the justice and his clerk testified to the effect that the transcript was properly signed, sealed, and mailed to the defendant on October 14, in an envelope bearing the request that it be returned to the justice’s address, which was given, if not delivered, and that it was never returned. Upon this state of proofs the court would have been justified in finding that the defendant’s allegation, that the justice had not kept his promise, was not sustained by the weight of the testimony.
But assuming for a moment that the justice did not keep his promise, this was not the neglect of anything that pertained to the official duty of justices of the peace, but was like the failure of a justice to fulfill his promise to file the transcript, or his promise to deliver it to the appellant’s attorney for filing, each of which excuses has been held insufficient to justify the court in sustaining an appeal entered after the rethrn day: Houk v. Knop, 2 Watts, 72; Sherwood v. McKinney, 5 Wharton, 435.
In either view that may be taken of the case the court was right in discharging the rule to show cause why the. transcript should not be filed nunc pro tunc.
Order affirmed and appeal dismissed at the costs of the appellant.
