28 Pa. Super. 586 | Pa. Super. Ct. | 1905
This is a motion to quash the defendant’s appeal from the order of the common pleas discharging his rule to show cause why judgment entered in a amicable action of ejectment under a warrant in a lease should not be opened. The motion is founded on the following waiver contained in the lease: “ The said lease hereby releases to the said lessor all errors and defects whatsoever in entering such action or judgment, or in any proceeding thereon, or concerning the same; and hereby agrees that no writ of error or objection or exception shall be made or taken thereto.” In Groll v. Gegenheimer, 147 Pa. 162, which was an appeal from a refusal to open a similar judgment, it was held that the appeal should be quashed. Prima facie, therefore, the waiver of the right of appeal contained in the lease would be ground for quashing the present appeal. But counsel for appellant says in his brief of argument “ that this appeal was from the decree of the court below because the tenancy under the lease had been terminated, and there was then in existence a contract of tenancy bet-ween the parties, executed at the time the original lease was terminated, in which there was no waiver of appeal: and the court below resurrected the lease for the purposes of its decree that had died by mutual consent of the parties over two months prior.”
The appeal is quashed and the record remitted to the court below.