Delaware & Hudson Canal Co. v. Loftus

The opinion of the court was delivered, by Thompson, C. J. The defendant in error in these cases has not furnished an argument written or oral to this court; we have, however, given to the assignments of error all due consideration, but without being able to coincide with the learned recorder in opinion, that it was proper to quash these appeals of the plaintiff in error, from the judgment of the alderman. In the first place the plaintiff^below was too late in making his motion to quash. The appeals were taken and entered to the September Term of the court, and the plaintiff appeared to them by counsel. At December Term the defendant pleaded to the action non assumpsit, payment with leave, and set-off. On the 16th of February 1870, at the third term, says the paper-book of the plaintiffs in error, on motion of the plaintiff’s attorney and affidavit filed, the court grant a rule on defendants to show cause why the appeals should not be stricken off. A rule to take depositions to be read on this rule was entered by plaintiff, and depositions were taken and filed on the 14th May 1870. Under this testimony a rule was entered against defendants to file an affidavit under the Act of Assembly, and otherwise perfect the appeals by the next term, or in default, the rule to strike off to be made absolute. Accordingly, on default of the defendants to comply with the rules, the appeals, or rather the two appeals, were stricken off. The cases are too numerous to require citation, that a party waives his right to quash by acquiescence in an appeal; and this may be inferred from delay as well as other acts. Now was not the act of appearing to the appeals by the plaintiff in this case, and receiving pleas by the defendants without objection, until the third term of the court, a waiver of objection to the form of the appeals, even if objectionable for the reasons on which they were struck off? Undoubtedly the defendant must have expected and was [421] preparing all this time to try its cases on the appeals. This is shown by its attention to the cases, as the pleas entered evidently show. In Weidner v. Matthews, 1 Jones 336, it was iheld as it had been before, in the cases cited in the opinion of the learned judge, that “ objections to the recognisance, &c., on appeal, must be taken in a reasonable .time, and before other steps are taken to prepare the case for trial, or they will be considered as waived Clark v. McNulty, 3 S. & R. 364, and Cameron v. Montgomery, 13 Id. 128, fully sustain this doctrine. The same principle is to be found in Carothers v. Cummings, 13 P. F. Smith 199. We think the laches of plaintiff in moving to quash the appeals, he being in court by appearance on the record all the while, and having notice of defendant’s preparation for defence, were too great at the third term, to entitle him to success, and that the court erred in striking them off. But on the face of the justice’s transcripts there were really no grounds for objection to the appeals. They were taken and entered in time; the recognisances were in the usual form, and the bail sufficient. The justice’s transcripts did not show that the_ action was brought under the Act “ For the better securing the compensation of labor in the county of Luzerne,” passed the 12th of March 1859. Nor did it appear that the defendant was engaged in mining coal, and that in this business the plaintiff had performed the labor and services for which he sued. Had all this appeared by the justice’s transcript, it would have been apparent that the recognisances were insufficient, and the appeals incomplete for want of the affidavit required by that Act; but this appears not otherwise than by the affidavit of the plaintiff made after the appeals taken. But it was not thus that the justice’s transcript could be supplemented, when the effect would be to deprive the defendant of trial by jury. The cases on the transcript were the ordinary cases for work and labor, and the appeals were in proper form in such cases, and we think the learned recorder erred in going outside the record for a reason for striking them off. The judgments of the Mayor’s Court striking off the appeals are reversed, and the cases are ordered to be reinstated, to. be* proceeded in according to law.