54 Pa. Super. 542 | Pa. Super. Ct. | 1913
Opinion by
The plaintiff brought an action of trespass against the defendant to recover damages for undue and unreasonable discrimination in the matter of furnishing facilities for transportation. From the judgment on verdict in the plaintiff’s favor the defendant took an appeal to the Supreme Court, which was terminated by the order, “The judgment is reversed.” On the return of the record, the prothonotary of the common pleas entered judgment in favor of the defendant and against the plaintiff for costs incurred in the common pleas, as well as those incurred on the appeal. Subsequently, on the application of the plaintiff, and after due notice to the defendant and hearing, the court struck off the judgment for costs, and from that order the defendant took the present appeal.
In Smith v. Sharp, 5 Watts, 292, it was declared: “Arrest of judgment has not the effect of giving the defendant costs; and it would be curious if he might entitle himself by procuring an equivalent for it in the court above. . . . On a simple reversal there is no award of execution except for purposes of restitution. The parties are left where they began, the case not being provided for by the statute of Gloucester, or any other which gives costs.” The doctrine of this case was expressly approved by the Supreme Court in Fries v. Penna. R. R. Co., 98 Pa. 142, and by this court in Ellis v. Agricultural Ins. Co., 9 Pa. Superior Ct. 392, and is relied on by the text-writers: Brightly’s T. & H. Pr., sec. 877; Wadlinger on Costs, secs. 19, 39; Monaghan’s Appellate Pr., sec. 239; 2 Johnson’s Pr. in Penna., sec. 64. The question then arises, whether the rule was changed by sec. 21 of the Act of May 19, 1897, P. L. 67, which, after defining what the costs in any appealed case shall be, provides that they shall be paid
The order is affirmed.