Kelly v. Donnelly , 16 Pa. Super. 363 ( 1901 )

Opinion by

Rice, P. J.,

The rules of equity practice as adopted and amended by the Supreme Court provide that a trial in equity shall be conducted, as nearly as may be, as a trial at law is conducted; that if exceptions be filed to the findings of the judge who conducted the trial, they shall be heard upon the argument list as upon a rule for new trial; and the judge or court in banc shall have power to sustain or dismiss any of such exceptions and confirm, modify or change the decree accordingly: Rule 66. In case of the death of the trial judge this duty devolves upon the other judges of the court. “ Upon appeal to the Supreme or Superior Court such matters only as have been so excepted to and finally passed upon by the court shall be assignable for error: ” Rule 67. The power to enter a pro forma decree overruling or sustaining the exceptions is not recognized by the rules. To “ pass upon ” the exceptions within the meaning of the rules implies a decision, after due consideration, of the questions properly raised by them. This may not be waived by the parties in order to bring the case for primary decision by us. Indeed, it may well be questioned whether we may dispense with it, without unwarrantably assuming the functions of the court of original jurisdiction. Be that as it may, we are not disposed to establish a precedent for the practice, and we do not regard the reason suggested in the opinion of the learned court below as sufficient to warrant a departure in the present case from the rule laid down by the Supreme Court upon the subject. See Wilbur’s Appeal, 10 W. N. C. 101, Morgan’s Appeal, 125 Pa. 561, West’s Appeal, 3 S. & R. 92, and Kerr v. Mayor of Pittsburg, 11 S. & R. 359.

The decree is reversed and the record is remitted with directions to the court below to decide upon the exceptions filed by the defendant.