262 Pa. 124 | Pa. | 1918
Opinion by
December 30, 1895, a scire facias was issued on a mortgage given by Augusta C. Scholl to Martha W. Smith, 'and, after two returns of nihil habet, the encumbered premises, being the property now in controversy, were sold, on April 6, 1896, to Otto Wolff, to whom, May 16, 1896, a sheriff’s deed was executed, acknowledged and delivered. Nothing was done by Mr. Wolff toward securing possession till May 15, 1917, one day prior to the expiration of twenty-one years from the date of the sheriff’s deed, at which time he presented a petition, under the Act of April 20,1905, P. L. 239, for a citation to show cause why Charles A. Scholl, respondent, should not deliver to him possession of the premises in question. An answer was filed wherein respondent claimed title by adverse possession for twenty-one years, and prayed a jury trial; also, as the heir of his mother, the deceased mortgagor, he attempted to set up a trust arising out of alleged fraud in the purchase by Mr. Wolff. On a rule for judgment for want of a sufficient answer, the court below held the averments as to the trust inadequate; but, at the same time, discharged the rule and awarded an issue. Petitioner has appealed.
The order appealed from is as follows: “The rule is therefore discharged and a jury trial ordered upon the question of adverse possession; the form of issue to be prepared by counsel and submitted to the court.” Respondent asks that the appeal be quashed, on the ground that this order is interlocutory. Petitioner resists the motion to quash, contending the order is appealable, and that the pleadings of record show a state of facts en
While the statute is not expressly averred, yet, concededly, the proceedings at bar were begun under the Act of 1905, supra. The statute in question provides for a petition and answer, and that “the petitioner may order the cause for argument” thereon; also' for a “rule for judgment upon the whole record,” a prayer for “a hearing or jury trial,” and that the court may “at any stage of the proceedings allow an issue to be framed, though the cause be ordered for a hearing upon petition and answer or upon the whole record”: Section 8, P. L. 242.
Is the order complained of one from which an appeal may be taken? The general rule is that, where a proceeding is contrary to the common law, no appeal is permitted except as expressly allowed by statute, and, in all such cases, the legislative provisions conferring the right of review must be strictly adhered to: see numerous relevant authorities, Monaghan’s Appellate Practice, Section 48, note 1. The Act of 1905, supra, provides: “Prom any final judgment, and from the refusal of the court to open a judgment by default, an appeal may be taken to the Supreme or Superior Court”: Section 18, P. L. 245. It is obvious that the words “final judgment,” in this statute, do not include the award of an issue, since, by such an award, the court in no sense decides the merits of the case, but rather postpones decision thereon until raised before a jury, where all questions of law and fact, which the trial tribunal may deem material, can be ruled and determined. Moreover, the issue here ordered was neither formulated by counsel nor approved by the court below; therefore, strictly speaking, this appeal is from an order directing an issue to be framed, which is never considered final: Watkins v. Hughes, 206 Pa. 526, and Kenworthy v. Equitable T. Co., 218 Pa. 286.
Appellant contends, however, that the refusal of the
The petitioner’s other contention, however, requires consideration of the question whether, under the Act of 1905, supra, on the pleadings before the court below, that tribunal should have entered a final judgment for possession of the property in controversy, instead of an interlocutory order directing an issue?
This is a purely statutory proceeding, where the parties must act in strict accord with, and have only such rights as are given by, the governing legislation; particularly is this rule applicable in the present case, where plaintiff seeks a summary judgment, the effect of which would be to confirm his assertion of title, and vest him with the legal right to possession of real estate which defendant claims to have owned and occupied without molestation or counterclaim of title for twenty-one years or more.
As already shown, the Act of 1905, supra, provides two separate and distinct methods for obtaining decisions on the pleadings: (1) “The petitioner may order the cause
The record in this case discloses no formal motion or order that the cause be fixed “for argument upon petition and answer”; but, assuming, while not deciding, that a rule for judgment for want of a sufficient answer is the equivalent of such procedure, still here neither the petition nor answer indicates the time when the citation for possession actually issued, a date which, according to appellant’s own theory, is essential to the maintenance of his case — he, so far as the records show, being obliged to depend upon the issuance of that writ to prove a demand which would stop the running of defendant’s alleged adverse possession. True, the order endorsed on the petition indicates when the citation was authorized; but, for all this discloses, the writ may not have gone out for days thereafter. On the facts embodied in the pleadings brought before the court below by plaintiff’s rule, i. e., the petition and answer, that tribunal, even if so empowered, was not in a position to enter final judgment against defendant, and would not have been warranted in so doing.
What we have just written sufficiently disposes of the first method of obtaining a summary judgment under the Act of 1905, supra. As to the second, plaintiff took no “rule for judgment upon the whole record,” and, since he did not attempt to avail himself of that remedy, this court is not called upon to consider or discuss points of law, argued in the paper books, which depend for their fundamental facts upon such a review; the determination of these interesting questions may await the jury trial ordered by the common pleas, when, no doubt, all the essential relevant circumstances will be properly developed. We conclude that, on the peculiar facts at bar, there was no abuse of discretion in awarding an issue; but, even were this not the case, the present appeal should be dismissed, for the reasons next stated.
Appellant’s paper book does not properly exhibit the
For the several reasons stated, the appeal is quashed.