Mehaffey v. Fink

Per Curiam, This was an appeal by the defendant from the judgment of a justice of the peace. On October 26, 1898, the cause was called for trial, and neither the defendant nor his counsel being present judgment was rendered for the plaintiff for the amount of the judgment entered by the justice, in accordance with the rule of the court below. On October 31, 1898, the defendant moved for and obtained a rule to show cause why judgment should not be arrested, upon the ground that the statement of claim showed no cause of action that would support a judgment. At the same time he obtained a rule for a new trial based on reasons fully explaining his default. On December 29, 1898, 536 the latter rule was discharged and the former made absolute. On June 27, 1899, the plaintiff entered an appeal in this court and took out a writ of certiorari but did not file the same in the court below, nor otherwise give notice of the appeal until March 5, 1900. The defendant moved to quash the appeal. Section 4 of the Act of May 19, 1897, P. L. 67, provides that no appeal shall be allowed in any case unless taken within six calendar months from the entry of the sentence, order, judgment or decree appealed from, but does not declare in so many words that the writ of certiorari shall be filed in the prothonotary’s or clerk’s office of the court from which the appeal is taken within six months. But where the appeal is not perfected by the filing of the writ in the office of the prothonotary or the clerk of the court from which the appeal is taken within six months from the entry of the decree, order or judgment or within reasonable time thereafter, notice of the appeal should be given as provided in Rule 6. As neither of these things was done in the present ease and as the appellant omitted to file his assignments of error as provided in Rule 14 the appeal will be quashed. We remark, however, that we cannot say that the court committed error in holding, as we may presume it did, that its rule does not authorize judgment by default where on appeal from a justice of the peace the plaintiff has elected to file a statement of claim, and this shows that he has no cause of action. See Palethorp v. Schmidt, 12 Pa. Superior Ct. 214. The appeal is quashed.