Orthodox Street
169 Pa. 499
Pa.
1895
Check Treatment

Opinion by

Mr. Justice Green,

The report of the viewers in this case affirmatively shows that in the former petition, common pleas No. 4, September term, 1891, No. 766, it was a part of the order of the court that ten days’ notice of the meeting of the viewers should be given, “ by personal notice to the registered owners and occupants.” The report also shows that “ none of the parties who are claimants before this jury in the present proceeding were personally served with notice in the said proceedings as to September Term, 1891, No. 766.” It seems therefore that the present petitioners had no notice of the former proceedings and therefore have had no day in court, and have had no opportunity to have their damages assessed. The only question raised on this record is the validity of the present proceeding. A rule was taken to quash the appointment of viewers and dismiss the petition. This rule was discharged by the learned court below, and an exception was dismissed which raised the same question.

We do not discover any sufficient reason for denying redress to these parties, or for requiring them to reopen the former proceeding. There is nothing in the act of May 16, 1891, P. L. 75, which prevents a party who has had no notice of a pending proceeding, from filing another petition. It is certainly true *502that the act contemplates a single proceeding for the ascertainment of all damages. The provisions of the first and second sections indicate such a purpose quite clearly. But the act requires that certain things shall be done in the conduct of the proceedings, among the most important of which is the giving of notice to all parties interested, in such manner as the court shall direct. In the second section a positive provision is made that personal notice shall be given to all parties interested, of all damages allowed, or benefits assessed, by a meeting of viewers to be held at least ten days after such notice has been given, at which meeting a schedule of damages and benefits shall be exhibited and all exceptions thereto shall be heard. In the present case no such notices as are required by the act were given to these petitioners, and the question is, have they a right to be heard upon a subsequent petition presented by themselves? We cannot understand why they have not such a right. The time to appeal had gone h}' when the present petition was filed, and as they had not been served with the notices which the law requires to be given, we cannot hold them bound by what was done under the first proceeding. There is nothing in the act of 1891 which requires them to reopen the first proceeding, and there is nothing which deprives them of the right to file a subsequent petition. The eases cited for the appellant do not seem to be applicable, as personal notice of the original proceeding was not required by the law in those cases. Without giving sanction to the proposition that individual parties may in any case disregard a pending proceeding where the statutory requirements have been complied with, and introduce their claims in a subsequent proceeding, we think the ends of justice will not be accomplished except by entertaining the present proceeding.

Judgment affirmed and appeal dismissed at the cost of the appellant.