Duff's Private Road

66 Pa. 459, 1871 Pa. LEXIS 59

• Court: Supreme Court of Pennsylvania
• Decided: November 8, 1870
• Status: Published

Opinion

The opinion of the court was delivered, January 3d 1871, by

Sharswood, J.

— On a certiorari to bring up the record of an inferior court all that is examinable here is the regularity of the proceedings. The Statute of Westminster 2 gives a bill of exceptions only in a trial according to the course of the common law, and there is no other means of putting evidence on a record: Union Canal Co. v. Keiser, 7 Harris 134. The refusal of the court below, on motion of the petitioners, to continue the order for review was a matter entirely of discretion, and is not assignable as error: Porter v. Lee, 4 Harris 412. It is contended, however, by the appellants that inasmuch as a p^ition for a review would have been in time when the motion to continue was made, the court ought to have regarded the motion in the light of an original petition, and that they had then a legal right to a review. By the 25th section of the Act June 13th 1836, Pamph. L. 559, it is provided that “ in all cases of views for any purpose mentioned in this act, the respective court shall, on petition of any person interested, direct a second view or review for the same purpose : Provided, that application therefor be made at or before the next term of the court after the report upon the first view.” It is true that the petitioners might have postponed their application until the next term, but the act gave them the election to do so or to apply at the same term. They exercised their election, and must be held bound by it. The review was therefore a pending proceeding, and must be subject to all the provisions of the law in relation to it; among others that the report must be made at the next term: Frankstown Township Road, 2 Casey 472.

Proceedings affirmed.