248 Pa. 124 | Pa. | 1915
Opinion by
This record discloses error, which, though not made the subject of exception or assignment, is too serious to be overlooked. “We do not indeed,” observes Strong, J., in Bean’s Road, 35 Pa. 280, “often notice exceptions not taken in the court below, but where there is a radical error patent on the face of the record, especially when the court has made a final order which cannot be executed, an order which in itself is erroneous, we will correct the mistake.” This expresses the situation here as we shall try to show.
The City of Philadelphia, in August, 1911, began proceedings looking to the condemnation and appropriation for park purposes of a tract of land belonging to Harry Schmitt, this appellee, containing between' four and five acres. At the city’s instance viewers were appointed to assess the damages. By their report, made 2d February, 1912, they awarded to Schmitt the sum of $24,263.00. From this award both parties appealed, and their appeals are still pending unadjudicated. Subsequent to the taking of these appeals the City of Philadelphia by ordinance repealed the earlier ordinance appropriating the land and directing its condemnation. Thereupon, 14th March, 1914, Schmitt presented his petition to court reciting the fact of the repeal of the appropriating ordinance by the city, and praying that a rule issue to show cause why an order of reference to a master should not be entered to determine and report plaintiff’s reasonable cost, expenses and counsel fees incurred by reason of the premises. To this rule the city, made no answer, and accordingly the rule was made
Whether the city in any event is liable to the plaintiff for money expended by him for services for counsel, is a matter aside from our present inquiry, and as to which we make no expression of opinion. When that question comes properly before us we will meet it. What here concerns us is to inquire by what authority the court below took cognizance of the plaintiff’s petition, and attempted an adjudication of the question raised by such a proceeding as was here instituted. It is to be observed that it was a proceeding collateral to a pending proceeding in which, if pursued to a conclusion, this and all other questions of damages and costs would have been regularly and properly adjudicated. The significant fact is that the original action is still pending and undisposed of to this day, so far as the record shows,, while we have here a final adjudication by the court, by way of anticipation, of an element in the plaintiff’s claim which by every rule of practice can be determined