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SCHERZINGER ESTATE v. WENSEL ET AL. (11/11/53)

November 11, 1953

SCHERZINGER ESTATE
v.
WENSEL ET AL.



COUNSEL

Prall B. Roads, Pottsville, for appellants.

Leon N. Mandell, Pottsville, for appellee.

Before Rhodes, P. J., and Hirt, Reno, Ross, Gunther, Wright and Woodside, JJ.

Author: Ross

[ 174 Pa. Super. Page 161]

ROSS, Judge.

This is an appeal from the refusal of the Court of Common Pleas of Schuylkill County to strike off a

[ 174 Pa. Super. Page 162]

    default judgment entered against the defendants by the prothonotary upon praecipe filed by the plaintiff.

On November 18, 1952, before a justice of the peace in Schuylkill County, the plaintiff brought an action against its tenants, the defendants, for the possession of certain real estate, on the ground that the defendants had defaulted in the payment of rent. On November 26, the justice of the peace entered judgment against the defendants for possession of the real estate and for a money judgment for wrongful detention thereof. Thereafter, on December 15, 1952, the appellants caused a writ of certiorari to issue, and applied to the court below and received from it an order stating, inter alia: '* * * Defendants' application that said writ be made a supersedeas to the proceedings before said Justice is hereby allowed and it is directed that said writ of certiorari operate as a supersedeas to said proceedings pending determination of said certiorari by the Court.' (Italics supplied.)

Rule 75 of the court below provides: 'When exceptions to be filed. In all cases of certiorari the exceptions thereto must be filed within ten days after the return of the writ, provided the record has been returned; and if not so returned within ten days after the return of the writ and in default thereof, the judgment below shall be affirmed, as of course, by the prothonotary upon a praecipe filed. A copy of the exceptions filed must be served on the opposite party or his attorney at least ten days before the argument day.'

Defendants failed to file exceptions within ten days after the return of the writ as required by Rule 75 and the plaintiff filed a praecipe directing the prothonotary to enter judgment against the defendants, and judgment was so entered on January 21, 1953. Five days later the court below granted the defendants

[ 174 Pa. Super. Page 163]

    a rule on the plaintiff to show cause why the judgment should not be stricken off. That rule was discharged by ...


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