July 1, 1964
SERBIAN EASTERN ORTHODOX CHURCH OF PITTSBURGH.
Appeal, No. 110, March T., 1964, from judgment of Court of Common Pleas of Allegheny County, Oct. T., 1962, No. 3690, in case of George Kukich, Alexander G. Brnilovich, Stanley Ivosevich et al. v. Serbian Eastern Orthodox Church of Pittsburgh, Nicholas R. Stone, Walter R. Ranich et al. Appeal quashed.
Harry Alan Sherman, for appellants.
Robert Rade Stone, with him George Raynovich, Jr., for appellees.
Before Bell, C.j., Jones, Cohen, Eagen, O'brien and Roberts, JJ.
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OPINION BY MR. JUSTICE EAGEN
In this action in equity, the chancellor entered a compulsory non-suit. 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 non-suit but rather from the refusal to take it off:
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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 non-suit.
Appeal quashed. Costs on the appellants.
ING OPINION BY MR. CHIEF JUSTICE BELL:
The Act of March 11, 1875, P.L. 6, § 1, 12 PS § 645, provides: "Whenever the defendant, upon the trial of a cause in any court of common pleas of this commonwealth, shall offer no evidence, it shall be lawful for the judge presiding at the trial to order a judgment of non-suit to be entered, if, in his opinion, the plaintiff shall have given no such evidence as in law is sufficient to maintain the action, with leave, nevertheless,*fn* to move the court in banc to set aside such judgment of non-suit; and in case the said court in banc shall refuse to set aside the non-suit, the plaintiff may remove the record by writ of error into the supreme court for revision and review, in like manner and with like effect as he might remove a judgment rendered against him upon a demurrer to evidence."
So far as the Court in banc is concerned, the Act is clearly permissive; it provides only for the situation in which the plaintiff in his sole discretion, files a motion with the Court in banc to set aside a judgment of non-suit. The statute does not cover, nor does it purport to cover, a situation in which a judgment of non-suit is entered by the presiding Judge and an appeal from that judgment is taken directly to this Court. Certainly it is a better and wiser practice to move the Court in banc to set aside the judgment of non-suit. However, recent cases recognize that a plaintiff may
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appeal from the entry of a judgment of non-suit. For example, in Schneider v. Sheldon, 380 Pa. 360, 110 A.2d 226, former Chief Justice JONES said: "The plaintiffs appeal from a judgment of compulsory non-suit entered in a trespass action ...."
*fn* Italics throughout, ours.