
    ROAD IN BROWN TOWNSHIP.
    Where a report of viewers in favor of a road was confirmed nisi, and persons opposed to the road, under the mistaken impression that it was confirmed absolutely, had viewers appointed to vacate the road, the Court cannot, after the report is confirmed absolutely, treat the second proceedings as a review, and strike off the absolute confirmation on the ground of the mistake of the signers of the.seconc} petition.
    Certiorari to Quarter Sessions of Lycoming County. No, 342 January Term, 1885.
    On March 4th, 1884, a report of viewers was filed and confirmed nisi. On May 7th a petition was presented to the Court to vacate the road, and viewers to vacate were appointed. On May 26, the original report was marked by the clerk “confirmed absolutely,” according to the rule. On June 20, 1884, a petition was presented, setting forth that at the time said petition was presented, the counsel for the remonstrators was under the impression that the original report of the viewers was confirmed absolutely and the Court was therefore asked to appoint viewers to vacate said road, which appointment was made.
    On July 16th, 1884, the Court struck off the confirmation absolute in the following opinion, per:
    Cummin, P. J.
    It would be manifestly, unjust to the petitioners for a review that their right to be heard in this matter should be lost to them because their counsel by mistake asked for the appointment of viewers to vacate instead of re-viewers. The petition they signed and sent to their counsel would have been sufficient to justify the appointment of re-viewers and they would have been appointed, of course, had not counsel inadvertently had the viewers appointed to vacate, before the. original, road was confirmed absolutely.
    
      This technical objection ought not to prevail against the rights of these petitioners who through no fault of their own have had no hearing.
    The order to open in the original case is superceded, the confirmation absolutely, stricken off and re-viewers will be appointed.
    The rule to show cause is made absolute at the costs of the parties in whose behalf it was allowed, as the respondents in the •rule were in no default.
    A certiorari was then taken to the Supreme Court.
    
      Jas. Wood and H. W. Watson, Esqs., for plaintiff in error,
    'cited Franconia Township Road, 78 Pa. 316; Road in Indiana County, 51 Pa. 296; Adamstown Borough Road, 14 Lan. Bar 66.
    J. J. and V. H. Metzger, Esqs., contra,
    
    cited Road from Seller’s House, 2 Pearson 449; Road in Franklin County, 3 Yeates 53. The Act of March 30, 1859, was extended to Lycoming County by Act of March 12, 1860, P. Laws 144.
   The Supreme Court reversed the order of the Quarter Sessions on March 30th, 1885, in the following opinion, per:

'Gordon, J.

Under the 4th section of the Act of the 30th of March, 1859, 'P. Laws 309, the power of granting re-views, on the laying •out of a public road, may be exercised at the discretion of the Court of Quarter Sessions, and in this it differs from the Act -of 1836, by the provisions of which a re-view is a matter of right. So, also, the former differs from the latter in this, that In the first no time is prescribed when the application for a review must be made, whilst by the second such application must Fe made before the next term after filing the report of the view. Admittedly, however, no re-view can be had after the confirmation of the report, and as the Act of 1859 prescribes no method for the vacation of a road, we must resort to the Act •of 1836 for the process by which such vacation may be accomplished. Now, in the case in hand, the petition to vacate, of the yth of May, 1884, having been filed before the final confirmation of the report of the viewers, was, of course, good for nothing. But the Court undertook to correct this defect by striking off the confirmation and treating the petition as a petition for review. That the Court might, for proper cause shown, have annulled its decree, cannot be questioned, for such power belongs to all Courts. But we cannot agree that, in this case, the cause .shown was sufficient. That decree was made neither through fraud nor by mistake, and proceedings leading to it were regular. The only allegation is that the petitioners made the mistake of supposing there was a final confirmation of the report, when in fact there was but a confirmation nisi. But this was a mistake neither of the petitioners for the view nor of the Court. What had the Court to do with a mistake such as this ? And why, under the circumstances, should it interfere to correct an error of this kind ? The re-view is, at best, ex gratia, and that the petitioners, through their blunder, failed to secure the opportunity of appealing to the discretion of the Court, involved the loss of no absolute right, and hence results no serious consequence. Nor are these parties left without remedy, for they may have a view for the purposes of vacation, under the Act oi 1836, as soon as the road has been opened, or even before such opening, if they can persuade a majority of the original petitioners to join with them in their petition for such vacation. But as the record now stands, and that is that to which we must look, we see nothing which warranted the Quarter Sessions in annulling its decree of confirmation and ordering a re-view.

The order of the Court below, striking off the confirmation of the report of viewers and appointing re-viewers, is now reversed and set aside, and the said confirmation is restored.  