Opinion
January 8, 1936.
Appeals — Time — Tolling of statute — Order of lower court staying proceedings.
Where an order is made in term time staying the proceedings under consideration, such order has the effect of tolling the statute limiting the time within which to take an appeal.
Appeal, No. 27, Jan. T., 1936, by defendants, from judgment of C. P. Delaware Co., Sept. T., 1933, No. 762, in case of School District of the City of Chester, to use of A. Heston Hanna, to use of Chester-Cambridge Bank and Trust Company, v. Richardson Luce, Inc., and Indemnity Insurance Company of North America.
Motion to quash appeal.
The opinion of the Supreme Court states the facts.
Order entered granting motion to quash appeal. Petition filed by appellants to reconsider order quashing appeal. Order quashing appeal set aside, and appeal reinstated.
Carlos Berguido, Jr., with him Solomon L. Hagy, for appellants.
Kingsley Montgomery, for appellees.
Appellees moved to quash the appeal entered in the above case for the reason that the appeal, perfected March 12, 1935, was more than three months after the judgment was entered on the verdict November 1, 1934. Appellants replied that on the 16th of November, 1934, the court below made an order upon motion of appellants' counsel granting "a rule to show cause why the judgment should not be opened and the defendants . . . permitted to file their motions in accordance with the prayer of the proceedings. Rule returnable February 1, 1935. All proceedings to stay meanwhile." February 25, 1935, the court below discharged the rule. Defendants, the appellants, thereafter took an appeal to this court, perfected as above stated.
It is appellants' contention that the portion of the order "All proceedings to stay meanwhile," had the effect of suspending the running of the time in which to take an appeal as required by the act in relation thereto. We stated under somewhat similar circumstances in Woodward and Williamson's Assessment, 274 Pa. 567, 569, where an order was made "permitting the filing of the petition with direction that all proceedings should be stayed in the meantime the only possible effect of this stay was to postpone the running of the time for taking an appeal." A similar determination of this question was made in Frazer's Est., 7 Pa. Super. 473, where it was stated that "There having been no stay of proceedings pending the rule to show cause, it did not stop the running of the statute." We therefore hold that when an order is made in term time staying the proceedings under consideration, such an order will have the effect of tolling the statute limiting the time within which to take an appeal. The effect of such an order would be to prevent an appeal being taken to this court within that time.
The order of December 24th quashing the appeal is set aside, the appeal is reinstated, the case to proceed for final hearing according to law and the rules of this court. The case to be placed on the argument list for the second week of April, 1936.