Hoffman v. Hafner

Opinion by Mb. Justice Potter, The only question presented by this appeal is whether or [12] not in striking off an irregular judgment, the court below erred in refusing to award a writ of restitution. The judgment which was stricken off was admittedly irregular. It seems, however, that very soon after it was entered, a writ of' habere facias was issued and possession was given by the sheriff to the plaintiff. The court below in its opinion, states that after the plaintiff had been put in possession, the premises had been sold to a purchaser. But there is nothing upon the record to show this fact, and in his answer to the rule to show cause why the judgment should not be stricken off, the plaintiff avers that he is sole and absolute owner of the premises in question. It is suggested in the argument on behalf of the appellee that evidence of the sale has been lost, and, owing to the death of former counsel in the case, it cannot now be found. But as the refusal to award restitution was based chiefly upon this alleged fact, and as the argument here for the appellee stands upon the same ground, evidence of a sale ought to have appeared upon the record. But in any event, it is apparent from the answer of the plaintiff to the rule, that the sale of the property, if any there w~as, must have been made after the granting of the 'rule to show cause why the judgment should not be stricken off and restitution awarded. “ Restitution is always granted on the reversal of a judgment, unless there be something peculiar in the case: ” Ranck v. Becker, 13 S. & R. 41. “ The court may, after a writ of possession, refuse the writ in special cases, as where the proceedings are reversed on an exception, which has ceased to exist: ” McGee v. Fessler, 1 Pa. 126. As where a tenancy has terminated: Ibid. To prevent injustice, restitution will also be awarded conditionally: Ranck v. Becker, supra. But in the present case none of these exceptional matters appear and the record shows nothing which in the exercise of the discretion of the court, should call for a refusal to award restitution. The court below says that, “The defendant’s affidavit sets out his defense upon the merits. The allegations are denied in the plaintiff’s answer.” In Ranck v. Becker, supra, tins court has pointed out that it will not do to refuse restitution because of conflicting statements by the parties. To do so would be to involve the court in endless difficulties, and that “ to avoid all embarrassment of this kind, the [13] general rule must be, that on the reversal of a judgment, the plaintiff in error is entitled to restitution.” We are satisfied that as the record of this case stands, it shows no reason for the refusal by the court below of a writ of restitution in favor of the defendant. As we said in Buchanan v. Banks, 203 Pa. 599, not only is there manifest incongruity in proceeding to trial with the ejectment plaintiff in possession, but in the interest of justice the appellants should be restored to the situation in which they stood before they were dispossessed. The specification of error is sustained, and it is directed that the writ of habere facias possessionem be set aside, and that a writ of restitution be awarded to the defendant.