456 Pa. 566 | Pa. | 1974
Lead Opinion
Opinion by
This action in equity sought specific performance of a contract to sell realty. After an extended hearing, the chancellor entered an adjudication on June 22,1973, which included findings of fact and conclusions of law, and a “final decree” ordering the defendants to comply with the agreement. From this “final decree”, the defendants filed the instant appeal on July 18, 1973. The decree must he vacated.
Since the parties here were deprived of the opportunity of filing exceptions to the chancellor’s decree, and a review thereof by the court en banc below, the decree will be vacated and the record remanded for this purpose.
It is so ordered. Each side to pay own costs.
Dissenting Opinion
Dissenting Opinion by
I dissent. The parties were not, as the majority presumes, deprived of an opportunity to file exceptions to the chancellor’s decree. Rather, the parties expressly waived their right to file exceptions. The sole reason a final order was entered was that, as the chancellor stated, “the parties have stipulated that this matter may be considered as on final hearing.” To remand to afford the parties an opportunity to do that which they agreed not to is an unwise appellate practice. No rights are being protected by such a course. To the contrary, the right of the parties (and the chancellor) to rely on a stipulation is infringed. Cf. Kassab v. Central Soya, 432 Pa. 217, 221-24, 246 A.2d 848, 850-51 (1968).
In my view, the chancellor’s decree should be affirmed. After hearing extensive testimony, reviewing the pertinent documents, and conducting a personal view of the premises, the chancellor found that the parties intended that appellants would convey to appellees the parcel of land in dispute. Assessment of credibility played a large role in the chancellor’s determination. Because the parties chose not to except to the decree, this Court should review only whether an error of law has been committed. Logan v. Cherrie, 444 Pa.
In passing I note that failure to enter a decree nisi, for whatever reason, does not go to the court’s jurisdiction. E.g., West Homestead School Dist. v. Allegheny County Bd. of Directors, 440 Pa. 113, 116, 269 A.2d 904, 906 (1970) ; Commonwealth ex rel. Ransom Township v. Mascheska, 429 Pa. 168, 239 A.2d 386 (1968).