Gilbert v. Lebanon Valley Street Railway Co.

• Decision Date: 16 March 1931
• Docket Number: 158
• Citation: 154 A. 302,303 Pa. 213
• Parties: Gilbert v. Lebanon Valley Street Railway Co., Appellant
• Court: Pennsylvania Supreme Court

154 A. 302

303 Pa. 213

Gilbert v. Lebanon Valley Street Railway Co., Appellant

No. 158

Supreme Court of Pennsylvania

March 16, 1931

Argued January 28, 1931

Appeal, No. 158, Jan. T., 1931, by defendant, from order of C.P. Berks Co., Dec. T., 1929, No. 141, discharging rule to strike off judgment, in case of Maude R. Gilbert v. Lebanon Valley Street Railway Co. Reversed.

Rule to strike off judgment. Before MAYS, J.

The opinion of the Supreme Court states the facts.

Rule discharged. Defendant appealed.

Error assigned was order, quoting it.

The order of the court below is reversed, the judgment against the defendant and all proceedings dependent thereon are set aside, and a procedendo is awarded.

Howard V. Fisher, with him Harold J. Ryan and Newell Duvall, for appellant. -- The provisions of the Act of March 5, 1925 P.L. 23, precluded the entry of the judgment for default of an affidavit of defense: Wettengel v. Robinson, 288 Pa. 362; Wilson v. Garland, 287 Pa. 291; Howe v R.R., 295 Pa. 337; Bernhardt v. Bass, 91 Pa.Super. 123.

Geo. B. Balmer, with him Zieber & Snyder, for appellee. -- The provisions of the Act of May 5, 1925, P.L. 23, do not prevent the entry of a judgment for default of an affidavit of defense after the court of first instance has determined that it has jurisdiction of defendant.

Appeals under the Act of May 5, 1925, P.L. 23, are governed by the provisions of the Act of May 19, 1897, P.L. 67: Watkins v. Justice, 256 Pa. 42; Com. v. Tweedy, 74 Pa.Super. 577.

Before FRAZER, C.J., WALLING, SIMPSON, KEPHART and MAXEY, JJ.

OPINION

MR. JUSTICE SIMPSON:

In the way provided by the Act of March 5, 1925, P.L. 23, defendant challenged the jurisdiction of the court below over it. That tribunal sustained its jurisdiction, and, within the fifteen days provided by the statute, defendant appealed to this court, to which the record, as required by section 2 of the Appeals Act of May 19, 1897, P.L. 67, was duly removed. While the appeal was pending and the record was still here, plaintiff entered judgment against defendant for want of an affidavit of defense. Subsequently, we sustained the ruling appealed from (Gilbert v. Lebanon Valley Street Ry., 300 Pa. 384) and the record was returned to the court below. Defendant then moved to strike off the default judgment entered as above stated; a rule to show cause was granted, which was afterwards discharged, because defendant, on its appeal under the Act of 1925, had not entered security or obtained a special order of supersedeas, as provided by the Appeals Act of May 19, 1897, P.L. 67, and its amendments. Defendant again appealed, and our single question is therefore: Are appeals under the Act of 1925 governed by the provisions of the Act of 1897 as amended, so far as they relate to the requirement of bail or special allowance in order to stay further proceedings in the court below pending the appeal? We are clear that they are not.

The Act of 1925 does not refer to the Act of 1897, or to any other appeal statute, but does say that the decision on the question of jurisdiction "may be appealed to the Supreme Court or Superior Court, as in cases of final judgments." The court below held that the last part of this clause in effect wrote the provisions of the Act of 1897, as amended, into the Act of 1925; but it is evident that those words must be construed with the first part, and only relate to a determination of the question as to which of the two appellate courts shall have jurisdiction of the appeal.

Nor do the provisions of section 12 of the Act of 1897, as amended by the Act of May 11, 1927, P.L. 972, or section 15 of the former statute as amended by the Act of April 22, 1929, P.L 629, when properly construed, affect the Act of 1925 in any way. To understand the Act of 1927, it must be considered in its entirety, and not as if it were a series of disconnected enactments. Section 4, as amended by section 1 of the Act of 1927, supra, provides that "No appeal shall be allowed in any case from an order, judgment or decree of any court of common pleas or orphans' court, unless taken within three calendar months from the entry of the order, judgment, or decree appealed from, nor shall an appeal supersede an execution issued or distribution ordered, unless taken and perfected, and bail entered in the manner herein prescribed within three weeks from such entry." It will be noticed that the bail required does not refer to appeals from interlocutory orders, as was the first appeal in this case, but only where it is desired to supersede an execution issued upon or distribution directed by the order, judgment or decree appealed from. It has, therefore, no relation whatever to interlocutory orders upon which the winning party cannot further proceed. Section 5 refers to the form of the bond required, and sections 6 to 11 each relates to the character of bond in a particular class of cases. Then comes section 12, which, as amended in 1927, provides that "In appeals from judgments and decrees in mandamus, quo warranto, contested election cases, from sentences in criminal proceedings and all other classes of cases not herein otherwise provided for, the appeal shall not operate as a supersedeas" unless specially allowed. This, however, relates only to "judgments and decrees" which may be enforced by final process unless a supersedeas is specially granted, and not to appeals from a mere interlocutory order, which cannot be enforced by the appellee, but merely operates to sustain the court's jurisdiction. Section 15 of the Act of 1897, as amended by the Act of 1929, is also inapplicable. Having in the preceding sections determined what must be done to stay further proceedings...