Commonwealth ex rel. Pughe v. Davis

Mr. Justice Paxson delivered the opinion of the court, We are asked to quash this writ upon the ground that error does not lie to the refusal of the court below to allow a writ of quo warranto. It is settled law both in this country and in England that quo warranto is not a writ of right; it rests in the sound discretion of the judge whether he will allow the writ. The late Chief Justice Gibson has made this so plain in Com. v. Jones, 2 Jones, 365, that no room is left for doubt. The same rule is declared in Com. v. Reigart, 14 S. & R., 216; Com. v. Cluley, 6 P. F. S., 270, and in Com. v. McCarter, 2 Out., 607. It is equally well settled that a writ of error does not lie to the exercise 'of a sound discretion. It is sufficient to refer to White v. Leeds, 1 P. F. S., 187, and Gump’s Appeal, 15 Id., 476. Our attention was called to the fact that in the case cited from 2 Out., a writ of error under similar circumstances was heard and decided by this court. This is so, but in that case the question was not raised, nor was it called to our attention in any manner. The judgment was affirmed upon the merits ; had the point been made the writ would probably have been quashed. It is always well to remember that a case is authority only for what is decided. Section 15 of the Act of 14th June, 1826, P. L. 621, Purdon 1208, authorizes a writ of error to be sued out by any person aggrieved “by the judgment of any Court of Common Pleas upon any writ of quo warranto,” &e. This provision cannot, by the most liberal interpretation of the statute, be extended to allow a writ of error on the part of a person aggrieved by the action of the court upon a rule to show cause why the quo warranto should not issue. It might be a sufficient reason why a writ of error would not lie in such case, to say that the Act of Assembly does not give it. Writ quashed.