Opinion
January 21, 1941.
January 31, 1941.
Appeals — Interlocutory order — Discharge of rule for trial of disputed issues of fact in equity — Dismissal of preliminary objections to bill — Dismissal of preliminary objections to defendant's answer containing new matter.
1. An order discharging a rule to show cause why disputed issues of fact arising in a suit in equity should not be tried by a jury is interlocutory only. [576]
2. Orders dismissing preliminary objections to a bill in equity and sustaining plaintiff's preliminary objections to defendant's answer containing new matter are interlocutory. [576]
3. Preliminary orders are not appealable in advance of final disposition of the case except when made so by statute. [576]
Argued January 21, 1941.
Before SCHAFFER, C. J., MAXEY, DREW, LINN, STERN, PATTERSON and PARKER, JJ.
Appeal, No. 93, Jan. T., 1941, from order of C. P. No. 5, Phila. Co., Dec. T., 1938, No. 4932, in case of East West Coast Service Corporation v. John E. Papahagis. Appeal dismissed.
Bill in equity.
Preliminary objections to bill in equity dismissed and plaintiff's preliminary objections to new matter in answer sustained. Petition and rule to try disputed issues of fact before a jury dismissed, opinion by ALESSANDRONI, J. Defendant appealed.
Errors assigned, among others, related to the action of the court below in dismissing preliminary objections and rule for trial of issues of fact by jury.
Robert A. Detweiler, with him Sylvia E. Detweiler, Charles W. Sweeney and George H. Detweiler, for appellant.
William Sandberg, for appellee, was not heard.
This appeal is from an order of the court below discharging defendant's rule to show cause why disputed issues of fact arising in a suit in equity should not be tried by a jury. Such an order is interlocutory only. Cf. Stewart v. Stewart, 65 Pa. Super. 593. Defendant also assigns error to the dismissal of his preliminary objections to plaintiff's amended bill and to the sustaining of plaintiff's preliminary objections to defendant's answer containing new matter. These orders, also, are interlocutory: Massachusetts Bonding Insurance Company v. Johnston Harder, Inc., 330 Pa. 336. The rule is settled beyond doubt that preliminary orders are not appealable in advance of final disposition of the case except when made so by statute: Lewis v. Beatty, 306 Pa. 242. Neither legislative enactment nor the Rules of Equity Practice of this Court authorize an appeal in this situation.
The appeal is dismissed.