161 Pa. 571 | Pa. | 1894
Opinion by
It is contended that the decree, from which this appeal was taken, is not final, and hence the motion to quash.
The sixth section of the act of May 16,1891, under which the proceedings were had, provides that, upon the report of the viewers being filed, “ any party may within thirty days thereafter file exceptions to the same, and the court shall have power to confirm said report, or to modify, change, or otherwise correct the same, or change the assessments made therein, or refer the same back to the same or new viewers, with like power as to their report. Or, within thirty days from the filing of any report in court, any party whose property has been taken, injured or destroyed, may appeal and demand a trial by jury, and any party interested in any assessment of damages or benefits may, within thirty days after final decree, have an appeal to the Supreme Court.” It will be noticed that the right to file exceptions to the report is given to “ any party ” — meaning, of course, any party interested in the proceeding — while the right to appeal and demand a jury trial is restricted to “ any party whose property is taken, injured or destroyed,” and the right of appeal to the Supreme Court is given to “ any party interested in any assessment of damages or benefits; ” but this right of appeal to the Supreme Court must be exercised within thirty days after final decree. It cannot be rightly exercised before the entry of a final decree.
We az-e clearly of opinion that the appeal in question is premature in that there has not yet been any final decree, in the court below, from which an .appeal to this court will lie. It therefore follows that the motion to quash the appeal should prevail. That, of course, carries with it and finally disposes of the motion to rescind the order, granted at chambers, declaring the appeal a supersedeas, etc. The appeal being quashed the order becomes inoperative.
The act provides for giving bond and proceeding with the opening of the street, etc.; but the court will not permit that, unless they are satisfied that, in the circumstances, it is proper to do so.
Appeal quashed and order staying proceedings revoked.