Kukich v. Serbian Eastern Orthodox Church , 415 Pa. 28 ( 1964 )

Opinion by

Mr. Justice Eagen,

In this action in equity, the chancellor entered a compulsory nonsuit. No motion to remove or set aside the judgment was entered below, but instead an appeal was filed directly to this Court. The appeal was prematurely taken and must be quashed.

An appeal does not lie from the entry of a judgment of nonsuit but rather from the refusal to take it off: Nazareth F. & M. Co. v. Marshall, 257 Pa. 489, 101 A. 848 (1917); McDonald v. Babcock, 269 Pa. 68, 112 A. 29 (1920). This applies to actions at law as well as in equity. See, Pa. R. C. P. Rule 1512. Under the Act of March 11, 1875, P. L. 6, §1, 12 P.S. §645, Avhich is still extant, it is required that a motion to set aside the judgment of nonsuit be first made to the court en banc to give the court an opportunity to reconsider the evidence before the case is removed to the appellate court. The writ of error lies only to the refusal of the court to set aside: Haverly v. Mercur, 78 Pa. 257 (1875); Bausbach v. Reiff, 237 Pa. 482, 85 A. 762 (1912); Nazareth F. & M. Co. v. Marshall, supra; Dellacasse v. Floyd, 332 Pa. 218, 2 A. 2d 860 (1938).

Plaintiffs-appellant maintain that the authority to enter a compulsory nonsuit is strictly statutory and that the chancellor lacked the power to enter such a judgment, after having heard evidence of the defendants. See Jordan v. Sun Life Assur. Co. of Canada, 366 Pa. 495, 77 A. 2d 631 (1951). Assuming the situation thus advanced is factually correct, it would in no manner affect plaintiffs-appellant’s obligation to pursue statutorily required procedure in attacking the judgment, or correct the error in prematurely filing this appeal.

A close examination of the record discloses additional fallacy in the above contention. When plaintiffs-appellant’s case was finished except for the testimony of a vital witness who was out of the state and unavailable, the court continued the hearing and fixed a subsequent date for the accommodation of this witness. After three such dates for hearing had been scheduled, and two months had passed without this testimony being available, the chancellor in the interests of expediency directed that the defendants proceed Avithout prejudice and reserving the right to apply for a compulsory nonsuit, when the plaintiffs-appellant’s testi-mony was in fact completed. To this, all counsel agreed. It was after the plaintiffs had completed their case in chief that the judgment was entered without consideration being given to the evidence of the defendants. Under such circumstances, the chancellor clearly had the power to enter the compulsory nonsuit. Appeal quashed. Costs on the appellants.