Harvey v. Pollock

23 A. 1127, 148 Pa. 534, 1892 Pa. LEXIS 1018

• Court: Supreme Court of Pennsylvania
• Decided: April 18, 1892
• Docket: Appeal, No. 136
• Status: Published

Opinion

Per Curiam,

This appeal was taken by the claimant in a feigned issue under the sheriff’s interpleader act, from the refusal of the court below to open the judgment of nonsuit entered in the trial of that issue. The nonsuit appears to have been entered upon April 3,1891, and the rule to show cause why said judgment should not be opened was taken Sept. 26, 1891. We are not aware of any authority for opening a judgment of nonsuit. It is not such a judgment as comes within the meaning of any of the acts of assembly in regard to the opening of judgments. The proper practice is to apply to the court below to take off the nonsuit. If application is made within the proper time, and sufficient cause shown, the court that ordered it will take it off. Upon a refusal to take it off, the party injured, provided he has excepted to such refusal, is entitled to an appeal to this court as in other cases. This is the course to be pursued, and there is no other. If, as alleged by the appellee, no exception was taken in the court below to the refusal to take off the non-suit, no appeal would lie: Bondz v. Pa. Co., 138 Pa. 153; Anderson v. Oliver, Id. 157. In such case, if the case were brought here upon appeal, we could only affirm the judgment.

Judgment affirmed.