Springbrook Road , 64 Pa. 451 ( 1870 )

The opinion of the court was delivered,

by Sharswood, J.

— By the 3d section of the “ Act relating to roads, highways and bridges,” passed June 13th 1836, Pamph. L. 555, viewers of roads are required to make report to the next term of the court after that at which they have been appointed; and it has been decided that a report made and confirmed at a succeeding term or an adjourned court is irregular, and may be set aside: Stauffer’s Appeal, 1 Amer. Law Jour. 441; Boyer’s Road, 1 Wright 257; Heidelberg Township Road, 11 Id. 536. The Act of February 24th 1845, Pamph. L. 52, which makes certain changes in the general road law in the county of Luzerne and other counties therein named, leaves this point unaltered.

The viewers were appointed September 5th 1868, the last day of the August sessions. The next term was by law to commence on the fourth Monday of November, and to continue one week, unless otherwise ordered: Act of March 7th 1860, Pamph. L. 117. It was provided by the 3d section of this act that the Court of Quarter Sessions of the county of Luzerne may at any term or session direct the said courts to continue at the then following term or session, one or more weeks in addition to those regularly appointed by law. An order w.as made for a second or adjourned week of court at November sessions, but this order was not entered of record until September 7th 1868. It is objected that it is not within the act, not having been made at any term or sessions. August Term expired September 5th, which was Saturday, and the order was entered on Monday following. Everything is to be presumed in favor of the regularity of the proceedings of a. court of justice; and we may presume that the Order of September 7th 1868 was made at the August Term, and that the court had adjourned to that day. It is not unusual to hold an adjourned session on the Monday succeeding the term in order to wind up the business. This satisfies the words of the act, which are term or session. In point of fact, there was a second week of the November sessions held, during which the report of the viewers in this case was filed. We agree with the learned judge below, that this was not an adjourned court, but an enlargement or continuation of the November Term, and that the report was therefore made to the next term of the court after the appointment of the viewers.

The other exceptions filed below have not been pressed. The court allowed the viewers at the same term to file an additional or amended report — a practice in all respects proper. It would be intolerable to set aside such report for merely informal errors, where the amendment is made within the time allowed by law for filing the original report.

The 2d assignment of error is, that it does not appear by the report that the viewers were all present. This exception was not made in the court below, and if made there in all probability the report would have been amended according to the fact. It is true, that to the rule that all objections to proceedings in road cases not made below, will be considered as waived, such errors as appear on the face of the record must be regarded as exceptions, as was held in Frankstown Township Road, 2 Casey 472. There, however, the exceptant had not been heard, and the allegation was that he had no notice of the proceedings. In this case the exceptants did file exceptions, and the reason of that case does not apply, where the defect on the face of the proceedings is one of form only, not of substance. Without deciding this, however, it is enough to say that it has often been held in this court that it need not appear on the face of the report that all the viewers were present at the view: McCall’s Ferry Road, 13 S. & R. 25; Middle Creek Road, 9 Barr 69; Road to Ewing’s Mill, 8 Casey 282.

Order affirmed.