Huntingdon County Line

OpiííTOír BY Rice, J., When this case was here before (8 Pa. Superior Ct. 380) we fully considered, and indicated as clearly as we could, the power and duty of the county line commissioners, the jurisdiction of the quarter sessions to review their findings, and our jurisdiction on appeal. We discover no reason for qualifying anything that we then said upon these subjects, nor is it necessary to repeat it here. We also considered the procedure, and held that the quarter sessions of Mifflin was not bound summarily to approve the report upon its presentation, but ought to appoint a time when the commissioners of Mifflin county might present their exceptions to the report, and the evidence taken in support of and against the same, might be submitted. Pursuant to these suggestions, the commissioners of Huntingdon county, on November 16,1898, moved the court “ to appoint a time for hearing the petitions .... for the approval of the report of the county line commissioners,” and thereupon the court fixed December 19, 1898, as the time. On the day appointed, the commissioners of Huntingdon presented their petition praying the court to grant a rule to show cause why the report should not be ap [392] proved, etc., returnable at “ future time,” and at the same time the commissioners of Mifflin filed nine exceptions to the report. Instead of granting the rule as prayed for, and in spite of the supplementary petition of the commissioners of Huntingdon county to have a future day fixed, when they could present their evidence as to the matters of fact alleged in the exceptions, the court entered a rule to show canse why the report should not be approved, returnable forthwith, and directed the argument upon the exceptions to proceed at once. The terms of the order are important in the consideration of the case and we quote it verbatim : “ Now, December 19,1898, the report and petition having been filed and exceptions having been filed by the county of Mifflin to the confirmation of said report the rule is granted returnable forthwith and argument be heard at once upon the exceptions. “H. C. Yanzant, A. J. “Joseph A. Wirts, A. J. “December 19, 1898, exceptions to said decree noted for commissioners of Huntingdon county and bill sealed.” There seems to be a dispute as to the exact moment of time when this last petition was presented, the appellees contending that it was not until after the rule to show cause was entered. We do not regard this as material. It was certainly presented before the hearing began, and the record sufficiently shows that the counsel for Huntingdon protested from the beginning against a summary hearing of the case at that time on the exceptions, and insisted on having the rule to show cause made returnable at a future day. Much is alleged in the paper-books, and was asserted on the oral argument before us, as to what took place in the court below after the foregoing order was made, which we must disregard. We have to deal with the record only, and are to determine from that alone whether the court below proceeded with regularity, according to law. On the same day, the record shows, the following order was made : “ And now, December 19, 1898, said report having been presented for approval, exceptions having been filed by Mifflin county against the approval of the report, after presentation of the testimony to sustain said exceptions, and after argument [393] and on due consideration of the testimony and argument thereof, the court hereby sustains the exceptions and refuses to approve said report and also refuses to order the same to .be recorded. “ By the court. “ H. C. Vanzant, A. J. “ Joseph A. Wiets, A. J.” If the exceptions had been confined to alleged defects and irregularities which were apparent on the face of the report, the commissioners would have been in duty bound to come to the hearing prepared to meet the objections, and to defend the report they offered for approval, and in that case could not allege that the refusal to postpone the hearing to a future day was an abuse of discretion which would warrant us in interfering. But we are not dealing with such a case but with one where many of the most vital exceptions alleged matters of fact, which could only be proved or disproved by extraneous evidence, and the fair inference to be drawn from the final order is that these as well as those going to the regularity .of the report, were sustained. This was too summary a mode of dealing with a matter of this importance. The power and duty to decide disputed questions of fact arising out of evidence dehors the record rests with the court below and with their decision, after a fair hearing we have no power nor disposition to interfere. But the act of deciding is judicial, and not arbitrary or wilful. The discretion vested in the court is, therefore, a sound judicial discretion, and to be a rightful judgment, it must be exercised upon the facts and circumstances before them, after they have been heard and duly considered: Schlaudecker v. Marshall, 72 Pa. 200, 206; Huntingdon County Line, 8 Pa. Superior Ct. 380. Upon what theory could the commissioners of Huntingdon county reasonably be expected to come prepared to meet such exceptions, and the evidence introduced to sustain them on the very day they were filed? The counsel for the appellee answer that the exceptions were substantially the same as those filed in Huntington county, and that the evidence upon which they relied was that taken in the Huntingdon county proceeding. But how were the commissioners of Huntingdon [394] county to know that, until the exceptions were filed and the evidence was offered? Was it their duty to come prepared to meet any and every allegation of fact that might be made against the action of the county line commissioners? And granting the correctness of the statement of counsel, were the parties bound to submit the case exclusively upon the testimony taken in the Huntingdon county proceeding? We are not questioning the right of the quarter sessions of .Mifflin in its discretion to receive in evidence these depositions and their accompanying exhibits, so far as pertinent to the exceptions, thus saving the parties the great expense of taking the same testimony over again; but what we do question is the assumption that the parties were bound to rely exclusively upon that evidence, and had no right to take and submit further evidence in support of and against the allegations of fact contained in the exceptions then filed. Under the plainest principles governing judicial procedure, it was irregular to order an argument of the case upon exceptions alleging matters of fact on the same day that they were filed, without giving the opposite parties a reasonable opportunity to produce their testimony covering the same. Can we correct the error? We notice, in the first place, that the action complained of appears on the face of the proceedings. We are not compelled to strain our powers beyond an examination of the proper record. In the second place, whilst the refusal to continue a cause is a matter resting in the sound discretion of the court having original jurisdiction, and ordinarily its action must be accepted as final, yet hi a plain case of abuse of discretion apparent on the face of the record, the appellate court unquestionably has power to interfere, and to afford to the party aggrieved a reasonable opportunity to present his case. We need only refer to two recent decisions of our Supreme Court where the power was vigorously asserted and exercised: Schrimpton v. Bertolet, 155 Pa. 638; Peterson v. Atlantic City R. R., 177 Pa. 335. The action complained of in the present case was not merely a mistake in the exercise of a discretionary power; it was an irregularity prejudicial to the rights of the appellants, and is apparent on the face of the record. There can be no doubt either as to our power, or as to our duty to correct it, and to send the case back for a hearing in due course of law. [395] As to the authority of the associate judges to act in the matter, we refer to our former opinion. The first and sixth assignments are sustained, the orders therein referred to are reversed and set aside, and the record is remitted with a procedendo.