84 Pa. Super. 461 | Pa. Super. Ct. | 1924
Argued November 10, 1924.
We have for consideration an appeal from an order of taxation of costs in a case in which the appellant caused judgment to be entered against the appellee for $6,450 on a note with a warrant of attorney for confession of judgment contained therein. The appellee presented a petition to the court of common pleas to open the judgment to permit him to make a defense, to which application the plaintiff filed an answer and thereafter depositions were taken. On consideration of this petition, the court opened the judgment to the amount of $2,133.69 thereby referring to a jury the question whether the defendant was entitled to a credit on the note for the last named amount. From this order an appeal was taken by the plaintiff to the Supreme Court where the action of the court below was affirmed and the case remitted to the court below with a procedendo; the basis for such action being that there was no evidence on the record of an abuse of discretion in the opening of the judgment. At the trial of the issue, a verdict was rendered for the plaintiff for the whole amount of the claim in dispute and judgment was entered thereon. In the taxation of costs the prothonotary refused to credit the plaintiff with the costs of the appeal to the Supreme Court, whereupon an appeal was taken to the court of common pleas. The latter court sustained the taxation as made by the prothonotary. The principal item in the plaintiff's bill is the cost of printing his paper-book, and the discussion in the arguments of the respective counsel is mainly directed to that part of the bill. Our inquiry is therefore whether the plaintiff in the judgment is entitled *463
to the costs referred to? The 21st section of the Act of May 19, 1897, P.L. 67, after defining what the costs in any appealed case shall be, provides that they shall be paid by the party "finally losing the cause," with exceptions not here relevant. The Act of April 15, 1907, P.L. 83, 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 amount as shall be expended in printing the paper-book in said appeal. The amendment of April 27, 1909, P.L. 263, to this act, does not change the liability so created. In Moser v. Philadelphia H. P.R.R. Co.,
The decree is therefore reversed and the record remitted to the court below with direction to sustain the appellant's exception to the refusal of the prothonotary to tax the plaintiff's costs on appeal to the Supreme Court and to direct taxation accordingly. The costs of the appeal to be paid by the appellee.