Knoller v. Everett Realty Co., 65 Pa. Super. 169

65 Pa. Super. 169 | Pa. Super. Ct. | 1916

Opinion by

Trexler, J.,

1. The plaintiff, Aaron Knoller, obtained a judgment against the Everett Realty Company on October 10, 1913, for $1,384.61. Upon an appeal to the Superior Court the judgment was reversed on July 15, 1914, the basis of the reversal as appears in the opinion of Judge Porter reported in 57 Pa. Superior Ct. 269, being that the defendant had erroneously been deprived of a credit of $279. On July 21,1914, plaintiff filed a petition praying for a reargument asking that in order to prevent further delay and litigation, the judgment be modified by allowing the credit of $279 and after reargument this court modified the judgment by deducting the credit and affirmed it for the lesser amount. The order made by this court through Judge Oready, 59 Pa. Superior Ct. 544, contained the following words: “The costs of appeal to be paid by the plaintiff,” the appellee.

The court below held that under the above order the defendant had the right to set off against the plaintiff’s claim, the cost of printing his paper book. Is this properly included as costs under the above order? Before the Act of April 15, 1907, P. L. 83, the cost of printing the paper book was not a part of the costs. That act provides that in all appeals to the appellate courts the party in whose favor the final decision is rendered shall be entitled to charge and collect from the losing party as part of the costs such amounts as shall have been expended for printing paper book upon said appeal. This does not mean the party who is the victor in the particular question raised on the appeal. It is he who gets the final decision in his favor. Thus in Henning v. Keiper, 43 Pa. Superior Ct. 177, where in trespass treble damages were recovered in the lower court, and upon appeal the judgment was reversed and the record remitted with instructions to enter judgment for the actual damages as found by the jury, the appellant who on the appeal sustained his claim that plaintiff was only entitled to single damages was not allowed to recover the cost of his paper book. We quote the language of Rige, P. J., “The result was a judgment for appellee but for a less amount than he had recovered in the court below. Apart from any equitable considerations, we think the court was right in holding that the final decision was not rendered in favor of the appellant within the meaning of the Act of 1907 and it is only the party in whose favor the final decision is rendered that is entitled to charge and collect, as part of the costs, the amount that shall have been expended for printing the paper book. Notwithstanding the fact that the defendant succeeded in reducing the amount of the judgment, he was nevertheless the losing party, just as the defendant on an appeal from a judgment of a justice of the peace is the ‘unsuccessful party’ if judgment be obtained against him in the Common Pleas though for a less amount.” This was followed in Pennsylvania Co. v. Wallace, 44 Pa. Superior Ct. 64, in which Judge Orlady states, “The words ‘final decision’ in the Act of 1907 refered to the state of the record of the court in Which the case is tried which puts an end to the action when no further question is reserved for future determination except such as may be necessary to carry the final judgment into effect. As a general rule a judgment is not considered a final one which settles only a part of several issues of fact.” When this court made the order as to costs, the costs included only such as were legally chargeable. As the Act of 1907 only allows the charging of the paper book against the unsuccessful suitor at the end of the suit, and as the plaintiff in the suit before us was the successful suitor,, we have, no authority to direct him to pay the cost of the paper book. We are bound by the terms of the Act of 1907, supra, and we have no power to extend its terms or vary its provisions. The ultimate winner of the suit is the one entitled to its benefits.

2. The court allowed defendant to set off a certain judgment which it had acquired against the plaintiff by assignment of verdict in Feldman v. Knoller, December 2, 1914. This the court had the right to do. “Judgments are set against each other not by force of the statute but by the inherent powers of the court immemorially exercised”: Ramsey’s App., 2 Watts 228. Under the facts as presented in the case stated, this assignment preceded the assignment of the judgment of Knoller v. the Everett Realty Co. to Messrs. Smyth and Scott, made December 10, 1914. There are no equities disclosed which would affect the former assignment and being prior in time, it is prior in law.

3. After the court below had found the sum due by the plaintiff to the defendant and had provided for the payment of the same by the defendant, it proceeded under the Act of March 14, 1876, P. L. 7, to direct the plaintiff to satisfy the judgment. The act contains no provision authorizing the court to direct the party to the action to satisfy the judgment, so subsequently the court directed the proper officer to satisfy it.

The appellant claims that under the Act of 1876 the court could not set off one judgment against another in a proceeding to obtain satisfaction. This was decided in Felt v. Cook, 95 Pa. 247. It does not however apply to the case before us. The court - in this case, under the case stated, performed the functions both of court and of jury and the set-off between the judgments was made not under the Act of 1876 but under the agreement of submission.

The order of the court as to the item allowing the defendant the cost of printing the paper book on appeal is reversed and the record is remitted with direction that an order may be entered in accordance with this opinion.