Second Street

29 A. 294, 161 Pa. 571, 1894 Pa. LEXIS 735

• Court: Supreme Court of Pennsylvania
• Decided: May 21, 1894
• Docket: Appeal, No. 3
• Status: Published

Opinion

Opinion by

Mr. Chief Justice Sterrett,

It is contended that the decree, from which this appeal was taken, is not final, and hence the motion to quash.

The sixth section of the act of May 16,1891, under which the proceedings were had, provides that, upon the report of the viewers being filed, “ any party may within thirty days thereafter file exceptions to the same, and the court shall have power to confirm said report, or to modify, change, or otherwise correct the same, or change the assessments made therein, or refer the same back to the same or new viewers, with like power as to their report. Or, within thirty days from the filing of any report in court, any party whose property has been taken, injured or destroyed, may appeal and demand a trial by jury, and any party interested in any assessment of damages or benefits may, within thirty days after final decree, have an appeal to the Supreme Court.” It will be noticed that the right to file exceptions to the report is given to “ any party ” — meaning, of course, any party interested in the proceeding — while the right to appeal and demand a jury trial is restricted to “ any party whose property is taken, injured or destroyed,” and the right of appeal to the Supreme Court is given to “ any party interested in any assessment of damages or benefits; ” but this right of appeal to the Supreme Court must be exercised within thirty days after final decree. It cannot be rightly exercised before the entry of a final decree.

As it had an undoubted right to do, the Pennsylvania Steel Company, within the thirty days prescribed by the act, filed exceptions to the report of the viewers, and also within the same time appealed from said report and demanded a trial by jury. That appeal is still pending and undetermined in the court below. It involves, among other things, the determination by jury trial of the amount of damages to which the Steel Company is entitled for property taken, injured or destroyed. Unless the proceeding should pzuve to be so fatally defective as to require dismissal without consideration of the case on its mei’its, there cannot, in the nature of things, be a final decree in the case until the question of damages is first settled by the verdict of a jury, etc. The action of the court below ozi the exceptions to the viewers’ report is clearly not a final decree within the meaning of the act; and the appeal to this court has nothing else upon which it can rest. It is clearly insufficient for the reason that it does not amount to a final decree. When the questions involved in this appeal are settled and the exceptions to the award are finally disposed of by the court below, we will have a final decree, and an appeal therefrom will bring up for review the entire' case. No judgment or decree is final that does not terminate the litigation, between the parties to the suit, in that jurisdiction: St Clair County v. Lovingston, 85 U. S. 628. To the same effect are Bostwick v. Brinkerhoff, 106 U. S. 3; Grant v. Insurance Co., Id. 429; Eckfeldt’s Ap., 13 Pa. 171; Palethorp’s Est., 160 Pa. 316.

We az-e clearly of opinion that the appeal in question is premature in that there has not yet been any final decree, in the court below, from which an .appeal to this court will lie. It therefore follows that the motion to quash the appeal should prevail. That, of course, carries with it and finally disposes of the motion to rescind the order, granted at chambers, declaring the appeal a supersedeas, etc. The appeal being quashed the order becomes inoperative.

The act provides for giving bond and proceeding with the opening of the street, etc.; but the court will not permit that, unless they are satisfied that, in the circumstances, it is proper to do so.

Appeal quashed and order staying proceedings revoked.