Long v. Shelly, 1 Foster 269

Long v. Shelly

1 Foster 269 | Pennsylvania Court of Common Pleas, Schuylkill County | 1873

Opinion by

Walker, J.

This suit, brought before a justice of the peace, was removed into the common pleas by the defendant upon a writ of certiorari. After argument, the judgment of the justice was reversed by the court, and the defendant issued execution for the costs. A motion was made by the plaintiff to set aside the writ on the ground that no execution can be issued under the 25th section of the act of 20th March, 1810 (Purdon’s Dig. vol 1, page 608, pi. 29), until the final" disposition of the case upon .a second trial before the justice. This is the sole point.

On the affirmance or reversal of a judgment removed into the common pleas by certiorari, the record is not remitted to the justice (as in cases of writs of error to inferior courts), but execution issues at once from the common pleas for the debt, interest.and costs, when it is affirmed; and 'when the judgment is reversed, for costs only, without referring the cause jzgain to the justice. Troubat & Haly’s Prac., vol. 1 part 2 p. 716; Robbins v. Whiteman, 1 Dallas 410; Silvergood v. Storrick, 1 Watts 532.

This is the invariable rule, with the exception where the certiorari is .non prossed, in which cáse the record must be remitted to the justice to *270be proceeded in, for the nonpros, is not final. In this respect there is no difference between certiorari and writs of error. Welker v. Welker, 3 Pa. Rep. 24. The reversal here, however, is a final determination of this suit. See act 20th March, 1810, sect. 22, Purdon’s Digest, vol. 1 p. 608, pl. 27, and no writ of error can issue thereon, Purd. Dig. 608 pl. 27; 7 Wright 111. And it is in the nature of a judgment for defendant for the amount of the costs. See British Statutes, Rob. Dig. 129, and Troubat & Haly, vol. 1, part 2, p. 734. The act of parliament passed in the 4th year of James I., chapter 3, gives costs to the-defendant in all actions brought in any court if non pressed, or judgment be entered for defendant, where the plaintiff, if successful, would be entitled to costs. Roberts’ Dig. of British Statutes 129 and 130. A judgment affirmed on certiorari, becomes a judgment of the common pleas, and there it can be enforced. Essler v. Johnson, 1 Casey 350. After this, if the plaintiff desires to institute another suit before the same or another justice of the peace, under that section of the act of 1810 above referred to, and shall obtain a judgment equal to or greater than this present judgment, then he will be entitled to costs under the act, and these costs may be recovered before a justice of the peace in the same manner as sums of a similar amount are recoverable. Motion discharged. - V

F. W. Bechtel, Esq., for plaintiff; George D. Haughawout, Esq.,, for defendant.