220 Pa. 276 | Pa. | 1908
Opinion by
Pursuant to an ordinance of the councils of the city of Philadelphia, the department of public works on June 3, 1895, omitted and struck from the city plan Pulaski avenue from Ruffner street to Roberts avenue and thereby vacated that portion of the avenue. The portion of the avenue thus vacated was permitted to remain open and its use was continued by the public for some time thereafter. On October 16, 1895, a petition was presented to the court below, common pleas No. 1, of Philadelphia county, by a number of the abutting property owners, asking for the appointment of a jury to assess the damages resulting to their properties by the vacation of the portion of Pulaski avenue, in accordance with the provisions of the Act of assembly approved May 16, 1891, P. L. 75. The appellants were not petitioners in the proceedings for the assessment of damages, but being notified of the presentation of the petition, it is averred that they appeared and participated therein. The city of Philadelphia moved to quash the petition for two reasons : First, because it did not set forth any vacation of the avenue ; second, because the court of common pleas had no jurisdiction. On December 28, 1895, the court entered an order quashing the petition. From the opinion filed in the case, it appears that the court quashed the petition on two grounds: (a) because as there had been no physical vacation of the street, no right of action for the recovery of damages had accrued to the petitioners, and (b) because the act of May 16, 1891, under which the proceedings were taken, did not apply to the city of Philadelphia, and the remedy of abutting property owners was in the court of quarter sessions under the special Act of April 21, 1858, P. L. 386, 3 Purd. (13th ed.) 2956.
Thus the record stood for nearly twelve years, until January 18, 1907. No appeal was taken from the order of the court of common pleas quashing the petition. It became final and absolute and has never been vacated, set aside or appealed from. On the date last mentioned, the appellants presented their petition to the court below, setting forth the facts above stated and averring, inter alia, that since the entry of the order of the court quashing the proceedings, the Supreme Court had held, contrary to the ruling of the court in quashing the pro
From the above recital of the facts in the case, it appears that the order of the court below, quashing the proceedings instituted for the purpose of determining the damages sustained by vacating Pulaski avenue, was entered on June 3, 1895. The order was in the nature of a decree or judgment adjudicating the right of the present appellants and other abutting property owners to have damages assessed for alleged injuries sustained by reason of the vacation of Pulaski avenue. It was final and was made in a proceeding in which the court had jurisdiction of the persons and subject-matter. The order was conclusive against the rights of the parties to maintain an action for damages at that time. If erroneous the order was not
The appeal now being considered is not from the order of the court below quashing tiie proceedings entered on June 3, 1895, but from the subsequent order of court, made on March 21, 1907, refusing to set aside and vacate the former order and refusing to reinstate the former proceedings and permitting the appellants here to proceed under those proceeding to have their damages assessed for the injury done them bjvacating Pulaski avenue. In other words, instead of taking an appeal from the order of the court below quashing the proceedings instituted for the purpose of having damages assessed, and having the alleged errors corrected in an appellate court, the appellants seek to correct the alleged error by an application to the common pleas to vacate its order quashing the proceedings and to reinstate the proceedings so that their damages can now be assessed. It is clear that the court below did not err in refusing to vacate its order of 1895 quashing the proceedings. If the appellants were aggrieved by that order, they should have moved to vacate it within the term, and failing to do so, the statute permitting an appeal pointed out a remedy and they were required to pursue it within the statutory period. The order was a decree or judgment of the court, and if erroneous the remedy was an appeal to the proper appellate court. That this was the proper course to pursue is made more apparent by the fact that the alleged error was one of law. Whether the appellants’ right of action accrued when the city struck the street from its plan and whether the proceedings were properly instituted under the act of 1891 were simply questions of law, and if the ruling of the common pleas thereon was erroneous, the appellants should have taken an appeal and had the order reversed.
It will not relieve the appellants from their duty to appeal from the order quashing the proceedings by alleging that they were misled as to the law of the case by the decision of the court below, and that the Supreme court, in other cases involving similar facts, subsequently interpreted the law differently:
We need not discuss or determine the extent to which the court of common pleas may go in correcting its errors and vacating its judgments. The solution of that question is not necessary to a decision of this appeal. The statute pointed out a remedy for the error, if any, committed in entering the order or judgment of June, 1895, and it was the duty of the appellants to pursue that remedy. The appellants have been guilty of very great laches in seeking to have the error of the court below corrected and in enforcing their claim to damages. The order of the court quashing the proceedings was made in June, 1895, and this application to vacate it was not made un
We are of opinion that the remedy of the appellants for error committed by the common pleas in entering the order of June 3, 1895, quashing the proceedings for the assessment of damages, was an appeal from the action of the court in entering the order, and that the order being final and unreversed, the common pleas, after eleven years had elapsed, was right in declining to vacate and set it aside and permit the appellants to have their damages assessed under the proceedings which it annulled.
The assignments of error are overruled, and the order or decree of the court below is affirmed.