Opening of Troubat Avenue

10 Pa. Super. 27, 1899 Pa. Super. LEXIS 235

• Court: Superior Court of Pennsylvania
• Decided: March 23, 1899
• Status: Published

Opinion

Opinion by

Orlady, J.,

The principal objection urged on this appeal to prevent the confirmation of the report of viewers was not suggested in the court below, where the fact as to whether the jury of view had or had not been resworn, after their reappointment, could have been legally ascertained, and if the jurors had not been reswom according to law, the case could have been recommitted to the jury so as to have been regularly conducted, and a great delay in the proceeding would have been thus avoided; or, if the jury had been in fact reswom, the omission to so state in their report was a clerical oversight of the draughtsman, and a supplemental report in which that fact would clearly appear could have been filed. The docket entries show that the jurors were, for good reasons, reappointed on January 6,1889, and their report shows that, after that date, the counsel for the city and the property owners were regularly before them at' nine meetings for the purpose of pressing their respective contentions. The case was conducted under the eye of zealous counsel, and the conclusions of the jury were well known to all the parties in interest. If the jurors were not reswom after being reappointed, the proceeding should have been then halted until that requisite had been performed, or, if then overlooked, the attention of the court below should have been directed to that fact by a more specific exception than “Because the report was contrary to law.” During the eight months the case was pending, twenty-six meetings of the jtuy were held and damages aggregating over $4,000 were awarded to six property owners, who were obliged to employ counsel, submit to delay in having the case heard, and incur necessary expenses incident to protracted litigation, which burdens were increased by not plainly and promptly raising the only question of merit in the case. Before they confirmed the report of the viewers, the three judges of the court below made a personal examination of the proposed highway, and of the properties which were alleged to have been damaged, and in not taking an appeal from the award of the viewers the city assented to the fairness of the assessment. In trials in the civil courts where exceptions are presentéd under similar circumstances they are not looked upon with favor, and the same rule applies in the quarter sessions. No question of jurisdiction arises, and we must treat the case here as it was treated on the trial below. We must regard it as the trial judge was led to view it from the pleadings, the evidence, and the contentions of counsel: Hartley v. Decker, 89 Pa. 470; Walls v. Campbell, 125 Pa. 346; Knapp v. Griffin, 140 Pa. 604; Krepps v. Carlisle, 157 Pa. 358; Taylor v. Sattler, 6 Pa. Superior Ct. 229; Taylor v. Burrell, 7 Pa. Superior Ct. 461. Under these facts it is too late to ask for the reversal of the whole proceedings on an exception which could, and, if well founded, should have been brought to the notice of the jury on January 6, 1898, and to the court below on the argument of the ease. For these reasons the first assignment of error is not considered.

The remaining assignments relate to matters which are not reviewable on this appeal. We cannot consider exceptions which raise questions of fact only: Montgomery County’s Appeal, 148 Pa. 640; Keller’s Private Road, 154 Pa. 547.

That the court had jurisdiction, and properly exercised it, is well settled by Twenty-eight Street, 102 Pa. 140, and Clark v. Philadelphia, 171 Pa. 30.

The order and decree of the court of quarter sessions is affirmed.