
    
      In re Road in Township of Lackawanna.
    1. The omission by the court to fix the width of the road at the time of the approval of the report of viewers is fatal to the proceedings. The width cannot be fixed at a subsequent term of the court, by an order nunc pro tuno; a decree thus made in road eases, cannot have any validity, excepting, perhaps, under some circumstances to preserve the regularity of the continuance of unexecuted orders.
    2. A review is a matter of right, when application therefor is made, at the time and in the manner, provided by the statute; but the provisions of the statute are mandatory, and cannot be avoided by acting upon the proceedings and the report nuno pro tunc.
    
    February 28d, 1886.
    Before Mercur, C. J., Gordon, Paxson, Trunkey, Sterrett, Green and Clark, JJ.
    Certiorari to the Court of Quarter Sessions of the Peace of Lackawanna county: Of July Term, 1885, No. 150.
    The record showed the following:
    October 23d, 1882, petition for new public road filed.
    October 23d, 1882, appointment of viewers on the above petition.
    January 22d, 1883, report of viewers laying out road filed.
    January 22d, 1883, report of viewers confirmed nisi.
    
    April 2d, 1883, exceptions to report of viewers filed.
    June 25th, 1883, petition for review filed.
    June 25th, 1883, reviewers appointed.
    June 27th, 1883, court allows amendment of review.
    July 16th, 1883, court revokes order for review.
    July 17th, 1883, court on motion fixes width of road at fifty feet, and this order entered nunc pro tunc as of date when the report of viewers was confirmed nisi.
    
    
      December 24th, 1883, exceptions to report of viewers overruled and report confirmed finally.
    January 29th, 1884, attorneys for exceptants excepts to judgment of the court in fixing width of this road at fifty feet ■nunc pro tune as of date of confirmation nisi, and asks for bill sealed, and thereupon bill sealed by the court.
    January 29th, 1884, attorney excepts to the judgment of the court in dismissing exceptions filed, confirming report of viewers and asks for bill sealed, and thereupon bill sealed by the court.
    February 2d, 1884, rule is granted to show cause why order of court revoking petition for review should not be revoked and petition for review reinstated.
    June 2d, 1884, rule to reinstate review is made absolute and petition for review reinstated.
    June 3d, 1884, reviewers appointed with orders to report June 16th, 1884.
    June 30th, 1884, time for reviewers to report is extended to October Term of court, 1884.
    October 29th, 1884, report of reviewers filed.
    October 29th, 1884, report of reviewers confirmed nisi.
    
    December 29th, 1884, exceptions to report of review filed.
    June 1st, 1885, report of reviewers confirmed finally.
    June 5th, 1885, exit order to open road.
    June 22d, 1885, petition for re-review presented.
    June 22d, 1885, petition for a re-review refused.
    ■ The exceptants thereupon took this writ, assigning for error, inter alia, the order of the court, fixing the width of the road nunc pro tune at a term of court subsequent to the term at which the report of viewers was approved or confirmed nisi ; the order of the court granting a review at a term of court subsequent to the next term of court, after the report upon the view; the order of the court confirming the report of the reviewers.
    . John F. Seragg and Fduiard Merrifield, for plaintiffs in error.
    1. The court erred in omitting to fix the width of the road, &c. It will be seen that the viewers’ report was confirmed at the January sessions, 1883, at which time, according to the requirements of the statute, the breadth of the road should have been fixed: see Act of June 13th, 1836, sec. 4, Purdon, 1497. This was not done. An omission to fix the breadth of the road is fatal to the proceedings : Road in Silver Lake, 3 W. & S., 559 ; 4 Id., 40. The width of the road should in all cases be fixed at the time when the report is approved nisi: Charleston Road, 2 Gr., 467; Road to Ewing’s Mill, 8 Cas., 282; 1 Barr, 356.
    
      2, The court erred in interposing nunc pro tunc July 17th, 1888, for the purpose of fixing the width. The court cannot interpose nunc pro tunc to throw open the proceedings to exceptions after the time for their reception has passed: Road in Silver Lake, 8 W. & S., 559. In proceeding in road cases no orders or decrees made nunc pro tunc can have any validity except it might be under some circumstances to preserve the regularity of the continuances of unexecuted orders to view: Road to Ewing’s Mill, 8 Cas., 284.
    3. The court erred in appointing reviewers after the final confirmation of the viewers’ report. The viewers’ report was confirmed absolutely on the 24th of December, 1883. On the 3d day of June, 1884, the court appointed the reviewers. It will be recollected that the report of the viewers was made at the January Sessions, 1883, and then approved and confirmed. Exceptions were filed and were pending until the 24th day of December, 1883, when they were dismissed. The application for a review was presented on the 25th day of June and reviewers appointed. The order, however, was revoked and the view confirmed at the succeeding January term. Afterwards a rule to reinstate the application for a review was granted, reviewers appointed, and a report made. This was irregular. It is irregular to appoint reviewers after confirmation of the road: Sellers’ Road, 2 Leg. Opin., 72; Franconia Township Road, 28 P. F. S., 316.
    
      W. H. Jessup (TI. M. Edwards and Horace E. Hand with him), for defendants in error.
    The only point in this case is whether there is vitality enough in the proceedings in the court below to warrant a procedendo after reversing for manifest errors. We would suggest this plan:
    1. To reverse and strike off the final confirmation of the original view, and the order nunc pro tunc fixing the width.
    2. To strike off all proceedings upon the review after the confirmation nisi and order a procedendo.
    
    This would imply a fixing of the width of the road by the court below, and give the appellants their full right to file exceptions, and give the court0 authority to refer back the report for correction if necessary, and also give the appellant the opportunity to apply for a re-review. This court can do this, and we think the ends of justice would be subserved thereby : Charleston Road, 2 Grant, 469.
    In Mont. County Road, 5 Barr, 102, this court confirmed the review, reversed the order fixing the breadth of the road at thirty-three feet, and the proceedings were remanded to the Sessions to re-fix the breadth of the road.
   Mr. Justice Clark

delivered the opinion of the court, March 15th, 1886.

The 4th section of the General Road Law of 18th June, 1836, provides: “ If the court shall approve of the report of the viewers, allowing a road, they shall direct of what breadth the road so approved shall be opened, and at the next court thereafter, such road shall be taken, deemed and allowed to be a lawful public road or highway, or private road, as the case may be.” The width of the road is undoubtedly a matter of which the parties in interest have a right to be informed before the proceedings and final judgment of the court are entered upon record; for, as this court said in the Road in Silverlake, 3 W. & S., 559, a proprietor who would submit to have his land appropriated to a road of twenty feet in breadth, might resolve on a vigorous resistance to one of fifty ; and if the breadth were not indicated, whilst the question of resistance is an open one, how could he determine what to do? The whole proceedings are in fieri and open to exceptions, until the next term after the approval of the report; after that, an exception comes.too late. It has been held; therefore, in many cases in this court, that the width of the road must be fixed at the time of the approval of the report, and that the omission so to do is fatal to the proceedings: Road in Montrose, 4 W. & S., 39; Charleston Road, 2 Gr., 467.

Nor can the width be afterwards fixed at any subsequent term of the court, by an order nunc pro tune; no decree thus made in road cases, can have any validity, excepting, perhaps, under some circumstances, to preserve the regularity of the continuance of unexecuted orders : Ewing’s Mill Road, 8 Cas., 284. The report of the viewers was filed and confirmed nisi at the January Term, 1883, and if the width had then been fixed by the court, and exceptions had not been filed, or a review ordered, at the April term the road reported would have, without more, become a lawful public highway. At the April Term, however, exceptions were filed, and this suspended the proceedings upon the report of the view. The report had only been confirmed nisi, that is to say, unless before the next term of court exceptions should be filed or a review ordered. The filing of the exceptions, therefore, took off this confirmation, and the report remained subject to the further action of the court.

Pending these exceptions, the proceeding for a review was inaugurated, but the application for a review was not in time. The original petition for a view was filed, and the viewers appointed 23d October, 1882; on the 22d January, 1883, the report was filed and confirmed nisi. The next term of the court after the report was the April Term, 1883; but the application for the review was not made until the next June Term. The 25th section of the Act of 1836 directs that a review may be had, provided application therefor be made at 'or before the next term of the court after the report upon the view. When application is thus made a review is a matter of right, but this provision of the Act is mandatory: Road in Indiana County, 1 P. F. S., 296; Franconia Township Road, 28 Id., 316; the proceedings and the report cannot be acted ‘upon nunc pro tunc, so as to avoid this requirement: Road in Reserve, 2 Gr., 204; Baldwin and Snowden Road, 3 Id., 63. The review was therefore wholly unauthorized by law, and the proceedings therein, with the final decree of 1st June, 1885, confirming the same, must be reversed and set aside.

We have nothing remaining, therefore, but the report of the view, and as the width- of the road, reported by the viewers, was not' fixed by the' court as required by law, the record is "incurably defective. The order of 17th June, 1883,-fixing the width, nune pro tunc, as we have airead}* said, cannot be sustained ; the final decree of confirmation entered 24th December, 1883, is therefore erroneous.

We are of opinion that owing to the great complication into which these proceedings have fallen, if the public necessity for this road still exists, the matter should be proceeded with de novo.

The entire proceedings of the Quarter Sessions are therefore reversed and set aside.  