Thompson v. Preston

5 Pa. Super. 154, 1897 Pa. Super. LEXIS 205

Opinion

Opinion by

Wickham, J.,

The defendants are met at the threshold of this court by a motion to quash their appeal. The reason assigned is that the Act of April 17, 1876, P. L. 29 under which the application to the court below was made for the allowance of the appeal from the judgment of the justice of the peace, gives no appeal from the order of the court refusing the application.

This is quite true, and if we were required to look at the case as here on appeal or writ of error, technically so called, we would be without jurisdiction. But as everything that comes to this court for review is brought up by a general proceeding called an appeal, a sort of omnium gatherum which includes the appellate proceedings, formerly divided into three classes, namely, writs of error, certiorari, and appeals, we are required to examine each case and determine how far, and in what manner, we shall take cognizance of it. Our jurisdiction is limited by section 7 of the Act of June 24,1895, P. L. 212, to cases of a certain character, which were rev'iewable in the Supreme Court, before the passage of that act. If the latter tribunal could have properly acted on this case, if brought before it in any one of the three ways mentioned, we have the same right when it comes before us generally on appeal.

It cannot be doubted, that it might have been reviewed in the Supreme Court on certiorari. As was said in appeal of Commissioners of Northampton County, 57 Pa. 452, “ The general rule is that where a new jurisdiction is created by statute, and the court or judge exercising it proceeds in a summary method or in a new course, different from the common law, a certiorari lies.” We deem it our duty therefore to hear and decide the case as if it had been brought before us by certiorari. The decision in Commonwealth v. Eichenberg, 140 Pa. 158, cited in support of the motion to quash, when properly viewed, tends to sustain our jurisdiction, to the extent already indicated, rather than to deny it.

But an examination of the record satisfies us that we cannot aid the appellants. An appeal from the judgment of a magistrate for a penalty, or in a summary conviction, should not be allowed save for cause shown: McGuire v. Shenandoah, 109 Pa. 613; Commonwealth v. Eichenberg, supra. To ascertain the cause alleged, reference must be had to the petition presented to the court below: Commonwealth v. Menjou, 174 Pa. 25, and we cannot go outside the petition and deal with the case, as though it had originated on a certiorari to the magistrate. Ordinarily an appeal should not be permitted, if the party desiring it has had an opportunity to fully and fairly present his ease before the magistrate, unless a doubtful legal question is involved, or there is something to indicate oppression, corruption or disregard of law on the part of the magistrate, oi after-discovered evidence which would justify a new trial, under the well-known rules relating to new trials for that cause. Neither art. V., sec. 14 of the constitution, nor the act of 1876, which was passed to carry it into effect, contemplates that an appeal shall be allowed merely because the party desiring it is dissatisfied with the result of the trial before the magistrate, as is the ease with most defeated litigants, and cheers himself with hopes of better success in the next encounter.

In the present case the petition, when analyzed, shows no better reasons than the above, coupled with the allegation that two of the appellants’ witnesses were in an adjoining state, at the time of the trial, and that their personal attendance could not be had. It is not intimated that the trial was not in every respect fair and legal, nor is it averred that the justice was asked for a continuance of the cause until the appellants could obtain the presence or the depositions of the absent witnesses. Had they asked for time, wherein to do either, doubtless it would have been granted them; and if refused it is safe to assume that the court of common pleas would have allowed the appeal. They did not choose to ask for indulgence, but deliberately went to trial. We cannot say that the court below was guilty of an abuse of discretion, in refusing the appellants’ application.

The order of the court below is affirmed at the costs of the appellants.