7 Pa. Super. 321 | Pa. Super. Ct. | 1898
Opinion by
In an action of trespass in which the plaintiff recovered judgment, the amount of the bill of costs was agreed upon by .the attorneys of the parties, the judgment paid and satisfied and the costs marked paid. With the record in this condition, a witness for the plaintiff filed his petition, praying for a rule upon the defendant to show cause why it should not pay the sum of forty-four dollars “ his witness fees, as a part of the costs recovered in the above entitled case.” The rule was granted and, upon a hearing, made absolute. The granting of the rule and the decree making the same absolute are assigned for error.
What standing had the petitioner in the court below ? He was not the. defendant’s witness. There was no contract oh the part of the defendant, express or implied, to pay him his .witness fees. His claim was against the plaintiff who had
It is not necessary for us to determine, as the case stands, whether the petitioner, Kier, was entitled to a surveyor’s fees under the act of April 7, 1870 (P. L. 1030) relating to Allegheny county, or those of an ordinary witness, nor is it necessary for us to intimate what might have been, if the plaintiff had presented his petition for a rule to show cause why the satisfaction of the record should not be stricken off and a relaxation of costs allowed.
As the case stands, the petitioner had no rights which could be enforced in the manner in which he sought to enforce them and, the record of the case being entirely closed by the satisfaction thereof, there was nothing upon which a rule such as this could rest, even upon the petition of the plaintiff in the suit.
The decree of the court below is reversed and the rule to show cause, etc., discharged.