Leibfried v. Horn

143 A. 786, 294 Pa. 137, 1928 Pa. LEXIS 347

• Court: Supreme Court of Pennsylvania
• Decided: October 27, 1928
• Docket: Appeal, 220
• Status: Published

Opinion

Per Curiam,

In answer to plaintiff’s statement of claim, defendant filed an affidavit of defense in lieu of demurrer. On July-13, 1927, the court below made the following order: “It is adjudged that plaintiffs have not set out a good cause of action.” Plaintiffs petitioned for reargument, and this was granted November 16, 1927. On January 23d, the court below ruled: “after reargument we adhere to our opinion that the statement filed does not set out a good cause of action.” Plaintiff appealed to us from this order. Appellee has moved to quash, on the grounds that the only appealable order-was the original one of July 13, 1927, and the present appeal was not taken within three months from that time, as required by statute ; that an order for reargument does not stay the running of the statutory period: Barlott v. Forney, 187 Pa. 301, 303; Henry’s Est., 290 Pa. 537.

Appellee’s motion must be sustained, but not on the grounds stated by him. It is obvious that neither order entered by the court below is a final one; to make either of these orders final, it would have to be followed by some such words as “and judgment is now entered for defendant”: Smith v. Phila. & Reading Ry., 286 Pa. 55, 56. An appeal cannot be taken until after a final judgment has been entered in the case (American Trust Co. v. Kaufman, 279 Pa. 230, 233); upon the entry of such a judgment, plaintiff’s right to appeal will arise.

The present appeal is quashed.