Pennsylvania Railroad v. Gorsuch

Mr. Justice Sharswood delivered the opinion of the court, We may assume, for the purposes of this case, that the Act of Assembly, approved June 13th 1874, Pamph. L. 283, entitled “An Act for further regulation of appeals from assessments of damages to owners of property taken for public use,” was a constitutional exercise of the power of the legislature, and binding upon the plaintiffs in error, notwithstanding the provisions of their charter and the supplementary Act of March 27th 1848, Pamph. L. 274, upon the same subject. That is a question which, in the view we take, it is unnecessary to consider and decide now. Upon that assumption the judgment in the court below, June 16th 1874, overruling the exceptions to the report of the viewers — quashing the appeal of the claimant and confirming the report — having been entered before the time for an appeal under the Act of 1874 had expired, may be conceded to have been irregular. But it certainly was not void. The report of the viewers had been filed March 16th 1874, and exceptions filed by both the claimant and the company. It cannot be pretended that the court had not full jurisdic [414] tion of the case. That judgment was a final adjudication of the controversy until set aside by the court or reversed by writ of error. It is clear then that the appeal entered the next day was irregular and cannot be sustained. The report had been merged in the judgment. We have standing upon this record two judgments— one of June 16th 1874, in favor of the plaintiff below for $645, and another upon the verdict of a jury under the appeal entered June 17th 1874, for the sum of $4200, with interest from March 1st 1872. Certainly both these judgments cannot stand together. The first judgment is not now before us for review. The present plaintiffs in error do not complain of it, and have assigned no error in it. The second judgment then is necessarily irregular, and must be reversed. It is urged, however, very strenuously, that as the court adjourned June 16th — the same day the report was confirmed and judgment entered — the claimant and plaintiff below had no opportunity to move to open or set it aside before the expiration of the time for an appeal under the Act of 1874. The fact may have been so, but we cannot see that it helps the case of the defendant in error. It may have been unfortunate for him that he or his counsel did not know of the passage of the Act of 1874 a day sooner. It may be also that the circumstance would have been a good ground to have appealed to the court below to have made an order setting aside that judgment nunc pro tunc. Whether the court could have made such an order — after the right of the plaintiffs in error had been fixed by that judgment — before any appeal under the Act of 1874 had been in fact entered, is, to say the least, very problematical. , It is further contended that the order of the court of September 1st 1876, discharging the rule to show cause why the appeal should not be stricken off, was in effect an order setting aside the previous judgment. The learned counsel for the defendant in error insists that the confirmation of the report was treated by the court and the parties as vacated, because the appeal was allowed, and the case proceeded on the assumption that the record in this respect had been formally annulled. He contends that this decision was a virtual revocation of the order as prematurely and irregularly made, and this court will regard it as amended. He cites Flanagin v. Wetherill, 5 Whart. 280, and Bouslough v. Bouslough, 18 P. F. Smith 495. But neither of these cases support his contention. They were cases in which mere formal defects in the entry of the judgment under review, which might have been amended in the court below, were considered in this court as having actually been amended. But surely that is a very different thing from considering that a judgment had been set aside nunc pro tunc — supposing even that such an order under the circumstances could have been made in this case. The appeal therefore of June 17th 1874, and all the proceedings under it, were erroneous, and the judgment upon the verdict must be reversed. Judgment (9th January 1877) reversed.