AGREEMENTS OF ATTORNEYS

Rule 10. All agreements and notices of attorneys touching the business of the Court shall be in writing, otherwise the Court will not enforce them. Superior Court Rule 6.

CRIMINAL CASES

Rule 11. The first Monday of each month shall be a special return day in each district for all appeals in cases of conviction and sentence of death for murder of the first degree. The fifth Monday after issuing the writ shall be assigned for the argument thereof.

Rule 12. Capital cases shall be placed at the head of the list for argument.

Rule 13. The appellant shall serve his paper books on the proper district attorney ten days before the day assigned for the hearing, and the appellee shall serve his three days before the hearing.

ERRORS AND APPEALS

Rule 14. Counsel for the appellant shall, on or before the return day of the term at which the case is upon the list for argument, specify in writing the particular errors which he assigns, and file the same in the prothonotary's office; and on failure so to do the Court may non pros. the writ. Superior Court Rule 8.

Assignments of error must be filed, Landis vs. Maher, 1 W. N. C. 407, and must be printed, Speers vs. Knarr, 4 Pa. Superior 80. Matters to which error is assigned must be contained in the record, Thirty-fourth St., 81 Pa. 27, and the facts upon which the assignments are based must be set out, Gamble vs. Woods, 53 Pa. 158, Harris vs. R. R. Co., 156 Pa. 252. If the error complained of is not sustained by the record, it will not be considered. Girts vs. Com., 22 Pa. 351.

Errors not assigned as required by the rules of the Supreme Court will be held to be the same as no assignments at all. Thompson vs. McConnell, 1 Grant 396; Daniel vs. Daniel, 23 Pa. 198; Bull's Appeal, 24 Pa. 286. An appeal from a decree not entered in accordance with suggestion of the Supreme Court will not be considered. Equitable Tr. Co. vs. Gans, 194 Pa. 435.

An appeal in name may be a certiorari in legal effect and inspection of the record is necessary to determine. Diamond St., 196 Pa. 254.

Certiorari, not writ of error, is the remedy where a new jurisdiction is created by law and the court exercises the jurisdiction in a manner different from the common law. Diamond St., 196 Pa. 254.

A certiorari does not bring up the testimony or opinion of the court below. Diamond St., 196 Pa. 254.

Appeal under the Oct of May 9, 1889, P. L. 158, is only common law certiorari when it is taken from a final order of the quarter sessions in a desertion case under the Act of April 13, 1867, P. L. 78. Com. vs. Smith, 200 Pa. 363.

An appeal from the order of the common pleas in habeas corpus is in effect a certiorari, and, if the record is regular, no appeal will lie. Com. et al. vs. McDougall, 203 Pa. 291.

An order discharging a rule to strike off an appeal from the report of county auditors is interlocutory and non-appellable. Moore's Appeal, 203 Pa. 376.

An appeal from an order of court striking off a satisfaction of a judgment is in legal effect a common law certiorari and is to be disposed of as such. Shoup vs. Shoup, 205 Pa. 22.

An appeal lies from the discharge of a rule to show cause why the suit should not be dismissed for want of jurisdiction; the alleged want of jurisdiction being based on an affidavit and plea that the same cause of action had been pleaded by plaintiff on a set off in another suit between same parties which is still pending. Such order is not final judgment. Price vs. Davis Coal and Coke Co., 208 Pa. 395.

No appeal lies to the entering of a nonsuit. Pa. I.

Hallock vs. Lebanon, 215

When an appeal has been entered and the writ of certiorari filed in the court below within six months of the date of the judgment or decree appealed from, and it appears that there had been no execution issued or distribution ordered when the appeal was perfected, the fact that a bond was not entered until after the expiration of the six months is no ground for quashing the appeal. Hanhauser vs. R. R. Co., 222 Pa. 240.

Compare notes to Rules 26 and 27.

JUDGMENT. N. O. V.

Formerly the refusal of the court to enter judgment for defendant n. o. v. was not assignable as error unless an exception had been taken. Keiser vs. Eberly, 226 Pa. 21; but it seems the Act of May 11, 1911, Sec. 6, P. L. 279, renders such exception unnecessary.

Rule 15. In all cases where the record is not returned on the return day of the term at which the case is upon the list for argument, it shall be the duty of the prothonotary to enter a non pros., which shall not be taken off except by order of the Court. Superior Court Rule 9.

Rule 16. The prothonotary shall endorse on each appeal or writ of certiorari to remove proceedings a rule to appear and plead at the return day of the writ; and in default of appearance

when the cause is called for argument, and on proof of ten days' service of the rule on the appellee or his counsel below, the Court will proceed ex parte. Superior Court Rule 10.

Rule 17. In all cases where, in pursuance of the judgment of this Court, a cause goes back to the court below for further proceedings, it shall be the duty of the prothonotary to certify and send back with the order, decree or judgment a copy of the opinion of the Court which shall have been filed. Superior Court Rule II.

Where the attention of the Supreme Court is called to a desire for an opportunity for appeal by the winning party in the court below, in case he should lose on the appeal by his opponent in the Supreme Court, the practice is merely to reverse the judgment and send the record back to the court below to enter such judgment as it should have entered in the first instance.

The time for appeal by a different party will then begin to run from such judgment, so that no one will be barred without a fair opportunity to be heard.

Where the Supreme Court, in reversing the court below, inadvertently enters judgment for the plaintiff on the verdict, and the time for defendant's appeal has passed, it will subsequently, on a rule to open or modify the previous judgment, rescind so much of it as gives judgment for the plaintiff, but let the reversal of the judgment of the court below stand, and remit the record of the court below for such judgment as law and justice require. Hughes vs. Miller, 192 Pa. 365.

Rule 18. Modified: "And now, January 11, 1915, it is ordered that in all cases in which application for reargument, or for the allowance of appeals from the decree or judgments of the Superior Court are filed, the record in each case is to be retained by the prothonotary until the application has been passed upon by the court."

Rule 19. Petitions for the allowance of an appeal from the Superior or other court, or for special supersedeas or other interlocutory order, must set forth the question involved, the opinion of the court and the grounds on which an appeal or other order is asked; and, where practicable, must be accompanied by copies of the paper books.

On an appeal from the judgment of the Superior Court, the question for the decision of the Supreme Court is whether the judgment of the Superior Court is correct on the record which was before it. If there has been a misapprehension of the facts, through the inadvertent error

of counsel in presenting the case, the remedy is to be sought by an application to that court and not by an appeal to the Supreme Court. Phila. vs. Penna. Co. for Instruction of the Blind, 214 Pa. 138. Platt Barber Co. vs. Groves, 193 Pa. 175.

On an appeal from the Superior Court to the Supreme Court, the proper form of an assignment of error is that "the Superior Court erred in not sustaining (or in sustaining as the case may be) the first assignment of error to the judgment of the common pleas to wit,” etc. If there are any new and further matters raised by the judgment of the Superior Court itself, they should be assigned separately in their due order.

An assignment merely specifying error in affirming the judgment of the Court of Common Pleas, without more, and assignments merely alleging error by the court below and not by the Superior Court, are not in the prescribed form. Griesmer vs. Hill, 225 Pa. 545.

See note on Rule 26, page 20.

Rule 20. All such petitions shall be filed with the prothonotary of the district in which the cause is pending, and shall be presented by him to the Court or the most convenient justice thereof. For purposes of computation of time, etc., the matter shall be deemed to be sub judice from the date of such filing.

Rule 21. If the prayer of the petition be granted, the prothonotary shall notify counsel for the petitioner, who must thereupon promptly file his præcipe and perfect the appeal in accordance with the statute, or take such action in cases not for appeal as may be appropriate to the relief sought.

Rule 22. All appeals in civil and criminal cases from the Superior Court to this Court shall on the application of either party be placed at the head of the list for the third argument week after the appeal has been allowed, and if the Court is then sitting in another district, the prothonotary shall promptly certify it to that district.

Rule 23. In mandamus proceedings, in actions of ejectment, either legal or equitable, and in all other actions or issues in the Common Pleas or in the Orphan's Court which involve the possession of, or title to, real property, or chattels, real or personal, the appellant shall be required to file with his appeal a certificate of the judge hearing the case that the value of the land or of the interest or of the property really in controversy is greater than fifteen hundred dollars.

An agreement that the amount in controversy is greater than the jurisdictional amount is not the legal equivalent of the certificate prescribed and required by the act. Matthews vs. Rising, 194 Pa. 217.

Where two claims against a decedent's estate are separate and distinct, and neither of them amount to $1500, they cannot be joined to make up the amount requisite to give the Supreme Court jurisdiction over an appeal by the executrix. Jenning's Estate, 195 Pa. 406.

The Supreme Court has no jurisdiction over an appeal where the judgment of the court below is for an amount less than $1500, although the judgment may incidentally settle the right to future sums which will exceed $1500. Hosack vs. Crill, 197 Pa. 370.

On appeals from the orphans' court the jurisdiction of the appellate court depends upon the amount of the separate interest of each appellant. The jurisdiction of the Superior Court cannot be taken away by lumping the claims of different appellants. Samson's Estate, 201 Pa. 590.

On appeal from a decree or judgment for the payment of money in any court or any form of action, the amount in controversy is determined for purposes of jurisdiction by the amount of the decree or judgment. Prentice vs. Hancock, 204 Pa. 128.

Where an appeal is taken to the Supreme Court from a decree of the Orphans' Court disallowing two separate and distinct claims against an estate, one over $1500, and one under $1500, the Supreme Court will remit to the Superior Court the appeal from the disallowance of the smaller claim, but will review the larger claim. Eslen's Estate, 211 Pa. 215.

The amount really in controversy where judgment for want of a sufficient affidavit of defense is refused by the court below is the amount alleged to be due in the statement of claim as of the time of bringing suit and not as of the time of taking the appeal. A certificate of the court below is of no efficacy where the suit is for a sum certain averred in the statement of claim. Com. vs. Magee, 213 Pa. 443.

Where a creditor of a decedent is awarded a claim in the Orphans' Court amounting to more than $1500, an appeal lies to the Supreme Court, although the legatee appealing has an interest in the fund in controversy to an amount less than $1500. The amount of the award fixes the jurisdiction. May's Estate, 218 Pa. 64.

Where an action is brought to recover back money on the ground of breach of warranty and the defendant in such action brings a separate suit against the plaintiff in the action on a promissory note, and by agreement the two actions are tried together and result in a verdict for the defendant for an amount less than $1500, an appeal lies to the Superior and not to the Supreme Court, inasmuch as the judgment is a judgment for the payment of money. Spring City Brick Co. vs. Henry Martin Brick Machine Mfg. Co., 221 Pa. 385.

An appeal from an order discharging a rule for judgment for want of a sufficient affidavit of defense lies to the Superior Court, where the amount claimed in the plaintiff's statement is under $1500, although a counterclaim set up in the affidavit of defense for breach of another and distinct contract is for an amount in excess of $1500 and although the establishment of the counterclaim at the trial would entitled the defendant