211 Pa. 10 | Pa. | 1905
Opinion by
The only question presented by this appeal is whether or
“ Restitution is always granted on the reversal of a judgment, unless there be something peculiar in the case: ” Ranck v. Becker, 13 S. & R. 41. “ The court may, after a writ of possession, refuse the writ in special cases, as where the proceedings are reversed on an exception, which has ceased to exist: ” McGee v. Fessler, 1 Pa. 126. As where a tenancy has terminated: Ibid. To prevent injustice, restitution will also be awarded conditionally: Ranck v. Becker, supra. But in the present case none of these exceptional matters appear and the record shows nothing which in the exercise of the discretion of the court, should call for a refusal to award restitution. The court below says that, “The defendant’s affidavit sets out his defense upon the merits. The allegations are denied in the plaintiff’s answer.” In Ranck v. Becker, supra, tins court has pointed out that it will not do to refuse restitution because of conflicting statements by the parties. To do so would be to involve the court in endless difficulties, and that “ to avoid all embarrassment of this kind, the
We are satisfied that as the record of this case stands, it shows no reason for the refusal by the court below of a writ of restitution in favor of the defendant. As we said in Buchanan v. Banks, 203 Pa. 599, not only is there manifest incongruity in proceeding to trial with the ejectment plaintiff in possession, but in the interest of justice the appellants should be restored to the situation in which they stood before they were dispossessed.
The specification of error is sustained, and it is directed that the writ of habere facias possessionem be set aside, and that a writ of restitution be awarded to the defendant.