Commonwealth v. Fleming

27 A. 783, 157 Pa. 644, 1893 Pa. LEXIS 1467

Opinion

Per. Curiam,

It appears by the record that when the rule for judgment, in this case, was discharged, counsel for both parties were in court, and left without taking any exception to the ruling ox-asking the court to seal a bill. The learned president of the court certifies that after adjournment of court counsel for plaintiff called on him at chambers and requested him to seal a bill of exceptions, which, for reasons stated, he declined to do. He further certifies that no exception has ever been filed by permission of the court or the judge thereof.

As was said in Building and Loan Association v. McCombs, 92 Pa. 364, “ this court is bound to disregard an assignment of error under the act of April 18,1874, unless the record shows an exception was taken.” The act provides that “ plaintiff may except to such decision and take a writ of error to the Supreme Court.” When a rule for judgment for want of a sufficient affidavit of defence is discharged in open court, in presence of the plaintiff’s counsel, then is the proper time to except and request the court to seal a bill. If counsel are not in court when such rule is discharged, no judge should refuse to allow an exception and seal a bill within a reasonable time thereafter.

In the circumstances, we think this appeal should be quashed. Appeal quashed.