37 Pa. Super. 432 | Pa. Super. Ct. | 1908
Opinion by
Where a justice’s judgment is founded upon a lease containing an express waiver of appeal the common pleas will, in general, give effect to such waiver by striking off an appeal, if application be made within a reasonable time, and before the appellee has taken steps to bring the case to trial or decision upon its merits: Rovno v. Lorentz, 32 Pa. Superior Ct. 162. But where the application to strike off is based upon that ground it must fail, unless the fact that the judgment was founded upon a lease containing such waiver appears in the justice’s record: Foss v. Bogan, 92 Pa. 296; Dawson v. Condy, 7 S. & R. 366.
This case came into the court below by appeal' by the defendants from the judgment of a magistrate in an action to recover “850 for one month’s rent' of premises 154 N. 11th St., due April 10, 1907, in advance.”' This is an exact and a' complete statement of- the plaintiff’s demand as shown by the transcript of the magistrate. But it further appears thereby that the following occurred on the trial of the case: “Arthur F. Schneider, plaintiff, sworn for plaintiff, offers in evidence:
Having failed in the foregoing application, the plaintiff filed a statement of claim, to which the defendants filed affidavits of defense. The question raised by the second assignment of error is as to the sufficiency of the latter.
From the averments of the affidavit of defense and the undenied averments of the statement of claim, we gather the following facts: The term of the lease sued upon was sixteen months from December 10, 1905; therefore it expired at midnight April 9, 1907. Thirty days before the expiration of the. term, in accordance with the provisions of the lease, Bates, who had bought the interest of his co-lessee, and been recognized by the plaintiff as the sole tenant of the property, notified the plaintiff that he would surrender possession of and vacate the premises at the end of the term mentioned, and this was assented to by the plaintiff. At the same time, Bates requested the plaintiff to give him an additional day within which to remove his goods. This request was granted by the plaintiff, and it was the full understanding of both parties that the granting and exercise of this privilege should not extend the tenancy beyond the term. This is the fair interpretation of the averment of the affidavit of defense. The defendant, thereupon, obtained a purchaser for his goods, who removed all of them on the day following the expiration of the lease; but neither he nor the defendant retained possession,, occu
The appeal is dismissed at the costs of the appellant without prejudice to his right of trial by jury and a second appeal after final judgment.