
    SEYBERT’S APPEAL.
    Where a party knew an award of Arbitrators was made in time to-appeal, bat mistook the day and came a day too late, the appeal cannot be entered nunc pro tnnc.
    No. 90 July Term, 1880. Error to Common Pleas of Luzerne County.
    This was a scire facias to revive a judgment in the case of Reuben Seybert’s administrators against Daniel F. Seybert. He filed an affidavit of defence, and plaintiffs then took out a rule to arbitrate. Defendant did not attend the arbitration proceedings, and an award was entered against him for $5,245.95 on November 22, 1879. His counsel told him it was entered November 25. On December 10th,’79, he wrote from Berwick, his home, to his Attorney to inquire about the bail costs and time for appeal. A letter and telegram were sent to him on the 11th of December, informing him that December 12th was the last day for the appeal. He did not receive it on the 11th, and early on the 12th he left for Hazleton with a load of grain, not returning until late at night, when it was too late to take a train for Wilkes-Barre, after receiving the letter and telegram. He came to WilkésBarre early on December 13th to enter his appeal. He took ■out a rule to enter the appeal nunc pro tunc but the Court discharged the rule on Feb. 7th, 1880, in the following opinion per
    Rice, P, J.
    The defendant knew in ample time that an award of arbitrators had been made against him; he is presumed to know within what time his appeal must be entered. He chose to take the chances on his being in time, and by doing so, it turned out that he was a day. too late. He has no one to blame but himself. His counsel is in no way to blame. He was not prevented from entering his appeal, either by the act of the plaintiff, the acts of the arbitrators, the acts of the Prothonotary, the negligence of counsel, nor the act of God.
    The rule is discharged.
    Defendant below then took a rule to strike off the award of arbitrators.
    The Court discharged the rule on May 24th, 1880, in the following opinion, per
    Rice, P. J.
    • The record entry is as follows: “Now, Nov. 5, 1879, parties '‘appear by counsel, and Gerge K. Powell, George W. Shonk, “and L. B. Landmesser are appointed arbitrators to meet at ■“arbitration room Wilkes-Barre, Pa. on 22d November, 1879, “at 9 o’clock A. M.”
    For all the record shows then, the choice of arbitrators was regular. The defendant, however, shows by depositions that neither he nor his counsel were present. The Prothonotary and his clerk are also called by him, but they do not recollect any of the circumstances attending the particular case, but testify generally as to the practice usually followed in the office. We have examined the testimony carefully, and do not find enough in it to warrant us in overturning the record and setting aside the award after the lapse of time. But beyond that it appears from the testimony of Mr. Gates, the plaintiff’s attorney, and his testimony is uncontradicted, that -the appointment of arbitrators was substantially as follows : At the hour named in the first rule, he appeared at the Prothonotary’s office, the defendant and his counsel being in default; that the Prothonotary fixed the number of arbitrators at three ; that when the choice of arbitraiors was reached , the counsel told the Prothonotary to name them ; that the Prothonotary named one, and the counsel suggested that there were two other good m.en-in the same office, and the Prothonotary assented to these, and they were chosen. After which the Prothonotary named the day and hour of the arbitration, the counsel only suggesting that he wanted time enough to get service of the rule, as the defendant’s counsel was out of town.
    Now it is apparent, from this uncontradicted testimony, that the number of the arbitrators and the time of meeting were fixed exclusively by the Prothonotary, and this feature of the case distinguishes it from Mitchell vs. Wilhelm, 6 W. 259, where it appeared of record that the plaintiff was in default, and that the Prothonotary and the defendant agreed upon the number of arbitrators. So the case of Feehrer vs. Rudy, 7 W. & S. 183, differs from this, in that the defendant was in default; and it appeared from the record that “the parties agreed upon three men, and then the plaintiff and “Prothonotary proceeded to nominate the men.” The Court, “Rogers, J., said : “There can be no reasonable doubt here “that the number was fixed by the Prothonotary in conjunction with the other party.”
    In the choice of arbitrators we see no substantial departure from the methods prescribed by ■ the statute. The Prothonotary acted for the absent party and the fact that he named the first man instead of the plaintiff is not material, Although the strict order of nomination prescribed by the statute was not followed it appears that each named one person, and that the third was named by the plaintiff as he had a right to do, and was agreed to by the Prothonotary.
    It follows from what had been said that if we stand by the record the choice of arbitrators, etc., was regular, and that if we correct the record by the parol testimony it is also regular.
    The rule to strike off the award of arbitrators is discharged.
    Seybert then took a writ of error to the Supreme Court assigning the discharge of the two rules for error.
    A. Ricketts, Esq,., for plaintiff in error
    argued that the / appeal should have been entered nunc pro tunc; Clark vs. Wallace, 3 Penrose & W. 441; Jones vs. Badger, 5 Binney 461. The record does not show that the number of arbitrators and time and place of meeting was fixed exclusively by the Prothonotary; Act June 16, 1836, Sect. 14 P. L. 720 ; Mitchell vs. Wilhelm, 6 W. 259; Feehrer vs. Rudy, 7 W. & S. 183.
    Q. A. Gates, Esq., Contra,
    argued the application to enter the appeal was rightly rejected; Moore vs, Creamer 3 P. & W. 416; Kerr vs. Rogers 9 Phila. 525; Sherwood vs. McKinney 5 Wh. 435; Houk vs. Knop, 2 Watts 72; Hepperd vs. Van Horn, 2 W. N.C. 67; Uhlar vs. Ketchera, 1 W. N. C. 3. The record was regular on its face, and the proof that Defendant was not present was met with proof that directions of the Act had been complied with ; Wilcox vs. Payne, 7 Norris 124. McEntire vs. McElduff, 1 S. & R. 19; Bemus vs. Clark 29 Pa. 251. The application to enter the appeal nunc pro tunc, is an admission of record of the regularity of the award; Fehr, vs. Rich 36 Pa. 472; Johnston vs. Harvey, 2 Penrose & W. 82; Wilson vs. Kelly, 81 Pa. 411; D. & H. Co., vs. Loftus, 71 Pa. 418.
   The Supreme Court affirmed the judgment of the Common Pleas on March 21, 1881, in the following opinion :

Per Curiam.

We affirm this judgment upon the opinion to the learned1 President of the Court.

Judgment Affirmed.  