Road in Kiskiminitas Township

32 Pa. 9

• Court: Supreme Court of Pennsylvania
• Decided: July 1, 1858
• Status: Published

Opinion

The opinion of the court was delivered by

Lowrie, C. J. —

We cannot regard the setting aside of the report of the viewers for excessive damages, as a final order in this case, and, therefore, we must declare this certiorari to be prematurely taken.

The petition is the commencement of the complainant’s action for damages; and having commenced it properly, he has a right to have it' carried through to the end. If his petition were fatally defective in time or matter, it would be dismissed; but mere irregularities or errors in other parts of the proceeding, are not fatal to his action. Those are usually corrected by the court below, while the proceeding is going on there; and if they are not, they may be corrected here.

A correction made here is no more fatal to the proceeding, than when made below: 24 State Reports 397; 23 Id. 286, 302; 18 Id. 220, 233; 17 Id. 116. The cause goes on anew from the correction. The road law requires an approval by the court, in order that the proceedings in such cases shall be equivalent to a judgment; and if the court disapprove the report, the party is entitled to an alias view on motion, just as he is entitled to a new trial when a verdict is set aside, or to a new inquisition when one is set aside, or as we order a new trial when we reverse a judgment for error in the trial. This shows that there is no final order here; therefore,

The certiorari is quashed, and the record remanded for further proceedings according to law.