Womelsdorf v. Heifner

1. An appeal from the judgment of a justice of the peace, which has been taken in good faith, within the prescribed time, but is defective as to certain statutory requirements, may be perfected later, and even after the time for appealing has elapsed, where no injury will thereby be done to the other party’s rights. 2. A. took an appeal from a judgment obtained against him before a justice of the peace, and entered bond in the usual form for the costs, 'file transcript was not filed until three months later, and certified that the judgment was for “work and labor don on farmo.” On the same day that the transcript was filed, leave was obtained by appellant to amend his appeal, and a bond for the debt and costs, and an affidavit that the appeal was not taken for delay, were filed in accordance with the provisions of the Act of April 20th 1876 (P. L. 43). A rule to strike off the appeal having subsequently been made absolute : Seld, (1) that the recognizance having been perfected, the appeal should not have been stricken off. (2) That the transcript did not show that the claim in question was for “ wages for manual labor ” within the meaning of the Act of 1876.

Eeror to the Court of Common Pleas of Huntingdon county: Of January Term 1883, No. 208. This was, in the court, below, an appeal from the judgment of a justice of the peace. The following transcript was filed April 10th 1882: Joseph JIeifnek v. Daniel Womelsdokf. Civil suit or claim not exceeding $100 — Dissember the 14th, 1881 summons issued to John Thomson, Constable, Returnable Dissember the 20th, 1881, between the hours of- 10 and 11 o’clock, a. m. Dissember the 15th, 1881, Constable returned on oath on Defendant the original summons personally by reading it to him and informing him of the Contents thareof and Now Dissember the 20, 1881, parties a pear plaintiff Claims for work and labor Don on farme fifty-two Days and a half, 52-J-on hearing the parties thare proofs and Allegation Judgment referd Now Dissember the 23 1881 Judgment for plaintiff for thirty Dollars and Costs of suit $30.00 A nd Now January the 2 A. D. 1882 Defendant files papers with Justis offers plaintiff Judgment for $12 with Cost Det same Day notified plaintiff of same plaintiff refuses to Aceptof Defendant offer. January the 10 1882 Defendant Appeals i Am hold in $60 as bail Absolute in this case Conditional for the payment of All costs aCrued or that may be leglly recovered against the appalant. J oseph Logan. Upon the same day appellant's attorney obtained leave of court to file an amended and additional recognizance. On April 17th 18S2, appellant filed such additional recognizance, with Joseph Logan as surety, in the sum of $75, conditioned for the payment of the debt and costs, and on the following day filed his affidavit that the appeal was not taken for delay, &c. On June 19th 1882, Heifner obtained a rule to show cause why the appeal should not be stricken off, for the following reasons, to wit: (1) The appeal was not perfected within the 20 days from ■entry of judgment by the justice, as the law requires, or since. (2) That there was no affidavit made by defendant, the •appellant, before the appeal was taken that same was not intended for delay, &c., as required by the Act of 20th April 1876, and made a condition precedent to the right of appeal. (3) There having been no affidavit made to found the right -of appeal on, as provided by the above mentioned Act, the .■granting the appeal and filing same, &c., ivas unauthorized, null and void, and could not be amended or perfected thereafter — -especially aftpr the 20 days in which to take the appeal had expired, and in the court above, &c. (4) Making the affidavit nearly four months after entry of .judgment, and upwards of three months after transcript for appeal taken, and after the same had been filed in the court above, before the prothonotary, was a a nullity and void. The court, after argument, made absolute said rule. The appellant thereupon took this writ of error, assigning for error the order making absolute said rule and striking off the appeal.