Opinion
April 25, 1947.
July 17, 1947.
Appeals — Question not raised in court below — Ejectment — Possession.
1. Where, in an action of ejectment, no question as to defendant's possession of the property is raised at the trial, it cannot be considered on appeal.
2. Sautter et ux. v. Rowland, 285 Pa. 212, followed.
Before RHODES, P.J., HIRT, RENO, DITHRICH, ROSS and ARNOLD, JJ.
Appeal, No. 153, April T., 1947, from judgment of C.P., Lawrence Co., Sept. T., 1945, No. 44, in case of Marion Rotunno et ux. v. Charles Joseph et ux. Appeal dismissed.
Ejectment proceeding. Before LAMOREE, J.
Verdict for plaintiff and judgment thereon. Defendants' motion for new trial denied. Defendants appealed.
Gilbert E. Long, for appellants.
J. Elder Bryan, with him Robert L. Wallace, for appellees.
Argued April 21, 1947.
Although no question as to defendants' possession of the property which is the subject matter of this action of ejectment was raised at the trial, it is the only question raised on this appeal.
The identical question was before the Supreme Court in Sautter et ux. v. Rowland, 285 Pa. 212, 131 A. 733. The court speaking through Mr. Justice WALLING said (pp. 215-16): ". . . no question as to possession was raised at the trial, so, on the authorities just cited, we cannot consider it here. No doubt the plaintiff in an action of ejectment must prove defendant's possession, which is usually done by offering in evidence the sheriff's sworn return of service of the writ. Where that is not sufficient there must be some other proof of defendant's possession: Kreamer v. Voneida, 213 Pa. 74, 78, and see McIntire v. Wing, 113 Pa. 67, also Helfenstein v. Leonard, 50 Pa. 461, 476; but here, as no such question was raised at the trial, we cannot consider it, . . ." (Emphasis added.)
The appeal is dismissed at the cost of appellants.