Noyes v. Brooks

174 Pa. 632 | Pa. | 1896

Per Curiam,

The single question in this case is, whether the learned president of the common pleas erred in holding that the order, allowing the defendants to appeal from the award of arbitrators without payment of costs, did not also relieve them from entering into the required recognizance, and in making, pursuant theretoj the peremptory order recited in the specifications of error? We are clearly of opinion that he did not.

According to section 27 of the act June 16, 1836, P. L. 301, prescribing the “rules, regulations and restrictions ” under which either party may appeal from an award of arbitrators, the necessary prerequisites are: (1) making the specified oath or affirmation ; (2) payment of “ all costs that may have accrued,” and (3) entering into the required recognizance. As to the second prerequisite, section 28 of the act provides for obtaining “ an order that the .... appeal shall be good,” without payment of costs, in certain cases wherein the judge making the order is satisfied that the party applying therefor is, “ by reason of poverty, unable to pay the costs; ” but, there is no provision in the act, or elsewhere, authorizing the court or a judge thereof to make an order, in forma pauperis, relieving appellants of the class to which defendants belong from complying with the third necessary prerequisite above mentioned.

It would, no doubt, have been competent for the legislature to have relieved that class from compliance with the third prerequisite as well as the second, but it does not appear to have been their intention to do so.1 While the policy of the act is to prevent frivolous appeals, the exception as to payment of costs, above referred to, was made for a reason apparent in the exception itself. In the 31st section, a further exception is made in favor of executors, administrators, minors, etc. As to that class, it is declared, “ the appeal shall be good without payment of costs, or entering into recognizance, if such appellant shall not have taken out the rule of reference.” In Morton’s Admrs. v. Morton, 11 Pa. 398, it was held that this exception did not relieve the administrators from complying with the first prerequisite of the 27th section of the act. As was said in that case, “ the old maxim is, the exception proves the rule, that is, makes the general rule good, so far as the exception does not reach.”

It follows from what has been said that the decree should be sustained.

Decree affirmed and appeal dismissed with costs to be paid by appellants.

Pee Cueiam:

And now, April 15, ’96, the decree filed in this case on the 6th April, ’96, is amended by adding the following words, viz: “ With leave to the appellant to perfect the appeal taken by him from the award of arbitrators by giving the recognizance required by law within twenty days from the date of this decree,” viz, the 6th day of April, 1896.