
    Leslie v. Hornung et ux.
    
      Pleading and practice — Binding instructions — Trial before alderman — Action de novo in Common Pleas — Appeal.
    A motion by plaintiff for a new trial was dismissed, after binding instructions to the jury to find for the defendant, where it appeared that plaintiff had entered suit ote novo in the Common Pleas after the case had been tried and dismissed by an alderman, the proper practice being to appeal from the judgment of the alderman.
    Motion for new trial. C. P. Allegheny Co., Oct. T., 1923, No. 987.
    Before Evans, Carnahan and Drew, JJ.
    
      William H. Pratt, for plaintiff; William P. and C. S. Wise, for defendants.
    June 19, 1925.
   Drew, J.,

This is a motion by plaintiff for a new trial, after binding instructions to the jury to find for the defendant.

The plaintiff brought suit before an alderman for the cause of action now at issue in this case. A hearing was held, the parties and their witnesses Were heard, the alderman found there was no cause of action and made this order: “And now, July 17, 1923, the case is dismissed and the costs of same being placed on the plaintiff.”

No appeal was taken, but, instead, plaintiff filed this case and wished to proceed de novo. Objection was made to this, and the jury was instructed to find for defendant.

The judgment of a justice of the peace is final if not appealed from (Act of March 20, 1810, 5 Sm. Laws, 161). He has no authority to enter a judgment of non-suit. In the case at hand, the decision was against the plaintiff; the remedy was by appeal, which would have been an effectual remedy if injustice was done: Gould v. Crawford, 2 Pa. 89; Lawver v. Walls, 17 Pa. 75; Bowser & Co. v. Sharping, 43 Pa. Superior Ct. 353, and Passarelli v. Morello, 52 Pa. Superior Ct. 12.

We think this action is barred, that no error was committed in so declaring at the trial, and that, therefore, there is no merit in the reasons assigned in support of this motion, for which reasons a new trial is refused.

From William J. Aiken, Pittsburgh, Pa.  