Maroni v. West Penn Power Co. , 91 Pa. Super. 259 ( 1927 )

Argued April 18, 1927. Appellant filed this bill to restrain the construction and enlargement of a pole and wire line along the curb in Roosevelt Boulevard on which his property abuts in the City of Butler.

On his application, supported by affidavits, a preliminary injunction was granted, and, pursuant to Equity Rule 38, a hearing thereon was ordered to be held five days later. At that time the court heard the evidence offered by both parties, and later, made findings of fact and entered a decree dissolving the preliminary injunction and dismissing the bill. As the dismissal of the bill at that stage of the proceeding was premature the decree could not have been sustained if properly challenged: Davis v. Porch, 268 Pa. 376; Swainbank v. Yoder, 79 Pa. Super. 132. For that purpose this appeal was taken and the case was argued here. But the decree dissolving the injunction and dismissing the bill was not assigned as error, though a number of assignments — all disregarding our rules governing assignments of error as well as Equity Rule 72 — were filed, complaining of findings of fact and conclusions of law. The appeal would of course fail without an assignment of error to what purported to be the final decree entered below. Because of the disregard of the rules governing assignments of error as well as the omission properly to assign the final decree appealed from, we must dismiss the appeal.

Since the oral argument, counsel for the parties, without obtaining leave of court, have filed what they designate as a certificate stating that although no answer to the bill was filed, the parties had agreed that the trial below should be considered as a final hearing on the merits of the bill; that they had presented all the evidence available and desired that this court now decide the controversy on its merits. Appellant accompanied this certificate by revised assignments of error.

This court can neither sanction such violation of its rules nor approve the omission to comply with the equity rules. Before a final decree can be entered, even if parties agree that a hearing such as took place, shall be considered final, it is essential that a decree nisi be entered pursuant to Equity Rule 68, with subsequent procedure as provided in Equity Rules 69 to 72: see Murphy v. Murphy, 85 Pa. Super. 169; Daugherty v. Daugherty, 85 Pa. Super. 421.

We shall add, since it may save the expense of another appeal, that we have examined the record on its merits and find that appellant is not entitled to the injunction prayed for.

Appeal dismissed at appellant's costs.