Commonwealth v. Butler

Citations

• 39 Pa. Super. 125
• 1909 Pa. Super. LEXIS 450

Syllabus

<p>Justice of the peace — Suit for penalty — Filling up ditch — Act of June 13,1836, P. L. 551 — Certiorari—Quashing appeal.</p> <p>1. A judgment of the court of common pleas reversing a judgment of a justice of the peace in a Suit brought in the name of the commonwealth to recover the penalty provided by sec. 67 of the Act of June 13, 1836, P. L. 551, for wrongfully filling up a ditch or drain is not conclusive, and an appeal lies therefrom to the Superior Court. Such a suit is not a civil action within the meaning of secs. 22 and 24 of the Act of March 20, 1810, 5 Sm. L. 161.</p> <p>2. The penalty provided by sec. 67 of the Act of June 13, 1836, P. L. 551, for filling up or injuring a drain or ditch, made by a supervisor, for draining water from a public road, does not apply to such a ditch within the -limits of a borough which had been created out of territory which was formerly part of a township. If a justice of the peace wrongfully enforces such a penalty, his judgment may be reversed on certiorari, although the writ of certiorari issued more than twenty days after the entry of the judgment by the justice; and this is the case because the record showed that the justice had no jurisdiction, and also because the proceeding is not a civil action to which alone the twenty day rule applies.</p> <p>3. Where a motion is made in the common pleas to quash a writ of certiorari to a justice of the peace, for certain grounds stated, and such a motion is overruled, such action of the court will be construed as an order allowing the writ nunc pro tunc, no previous allowance of the writ having been made by the court.</p>