Wheeler v. Potter

Opinion by W. D. Pouter., J., The plaintiffs recovered a judgment against the defendant [423] for $4.60 in an action before a justice of the peace, and, not be ing satisfied with this judgment, they appealed to the court of common pleas and filed a statement in assumpsit. The defendant entered a rule to arbitrate, under the compulsory arbitration Act of June 16,1836, P. L. 715. Arbitrators were duly chosen and qualified, and, after hearing, an award was filed finding in favor of the plaintiffs in the sum of $4.00. This award was not appealed from and became a final judgment. The defendant entered a rule upon plaintiffs to show cause, first, why judgment should not be entered for $4.00, the amount of the award and costs before the justice only; second, why the defendant’s costs should not be deducted from the amount of the award and any amount due plaintiffs and their witnesses; third, why plaintiffs should not pay all costs which accrued subsequently to the appeal from the judgment of the justice; fourth, why plaintiffs should not pay defendant the difference between the judgment and costs before the justice and the defendant’s costs since the appeal. It does not appear that the plaintiffs filed any answer to this rule. The court, after hearing, made the rule absolute and taxed the defendant’s bill and the costs accruing subsequent to the appeal from the judgment of the justice, allowing the plaintiffs credit for the amount of the award of arbitrators and the amount of the costs paid by them to the justice upon taking the appeal. From this action of the court plaintiffs appealed and assigned the same for error. The sole question presented by the record is, were the plaintiffs liable for costs of the defendant which accrued subsequently to the appeal from the judgment of the justice? The Act of April 9, 1833, P. L. 480, established the general rule that costs on appeals from judgments of justices of the peace and aldermen should abide the event of the suit and be paid by the unsuccessful party, as in other cases ; but the act made two exceptions to this rule, viz: “ Provided that if the plaintiff be the appellant, he shall pay all costs which may accrue on the appeal, if in the event of the suit he shall not recover a greater sum or a more favorable judgment than was recovered by the justice.” Then follows a provision with regard to appeals by defendants, enacting that in certain cases the plaintiffs should, upon such appeals, pay the costs. “ And in both cases the defendant’s bill shall be taxed and paid by the plaintiff in the [424] same manner as if a judgment had been entered in court for the defendant.” In the present case the plaintiffs appealed and the proceeding has arrived at a final judgment, by which they recover a sum less than the amount of the judgment by the justice. It therefore follows that the defendant’s bill of costs upon the appeal must be taxed in the case and paid by the plaintiffs, unless the provisions of this law had been changed by subsequent legislation: Addison v. Hampson, 6 Pa. 463; McMasters v. Rupp, 22 Pa. 298; Barker v. McCreary, 66 Pa. 162. It is contended on behalf of appellants that the act of 1833, is repealed as to Wyoming county by the Act of March 25, 1873, P. L. 406. This act applied only to Wyoming and two other counties, and the material portion of the same is as follows : “ The party or parties appealing shall pay to the justice before whom the case was tried, all his fees, and all the constable’s fees, in the case, and the said justice shall receipt in his record for said fees, so that it shall appear on the transcript; the same to abide the final determination of the case, as all other costs thereon, and no appeal need be allowed by the justice until said fees are paid.” This act relates only to the fees of justices and constables accruing at and prior to the taking of the appeal. Its direction that such costs shall abide the final determination of the case is substantially the same as that contained in the act of 1833, in which the words are, “ shall abide the event of the suit and be paid by the unsuccessful party.” The- act of 1873 was simply intended to insure to justices of the peace and constables the prompt payment of their fees, and did not change the manner of taxing costs in court save that the party who had paid the fees stood in the same position that the justice and constable had formerly occupied; as to who should ultimately pay the fees it was absolutely silent. The first proviso of the act of 1833, upon which the appellee relies, does not apply to the costs incurred before the justice ; it is of force only as to those costs which accrue subsequently to the appeal: Addison v. Hampson, supra. The learned court below very properly acted upon this theory, and in the taxation of costs allowed the plaintiffs credit for the full amount of the costs which they had paid to the justice upon taking the appeal, so that those costs abide the result of the suit and are recovered by the plaintiffs because in an action of debt they have recovered a judgment. [425] There is no inconsistency whatever between the acts of 1838 and 1873, and the provisions of the former remain in force. Appellants contend that because this was an award under the compulsory arbitration act the whole proceeding is out of court, no appeal having been taken, and that, therefore, the costs can only be recovered in this proceeding under the statute, of Gloucester. It is true that in the absence of legislation of our own upon this subject the statute of Gloucester would control: Bellas v. Levy, 2 Rawle, 21; Remely v.Kuntz, 10 Pa. 180. But the act of 1833 is clear and specific, and the English statute must give way. A reference under the compulsory arbitration act does not take a ease out of court. The act in question simply devised an additional means of trying issues, and the arbitrators are a part of the machinery of justice and of the court. The judge cannot interfere with their manner of trying, or intrude upon their deliberations. So far .as rulings upon competency of witnesses, admissibility of testimony, and other matters arising at the hearings are concerned, the proceeding may, in a certain sense, be said to be out of court; the arbitrators are not strictly bound by the state of the pleadings, and the only manner in which an error in such matters can be corrected is by appeal: LeBarron v. Harriott, 2 P. & W. 154. But the arbitrators, under this act, have their authority because there is an action pending in court, and if the cause be discontinued in the court the authority of the arbitrators is gone. The award must be filed in the court, and the court may set it aside upon the ground of misbehavior of the arbitrators, or that the award was pro-cured by fraud or collusion: Cochran v. Eldridge, 49 Pa. 365 v Brandon v. Forest County, 59 Pa. 187. See also, P. & L. Digest of Decisions, 1291. If the award is unappealed from it becomes a judgment of the court and must be enforced through its process, the costs must be taxed under the supervision of the court, and in accordance with law. It was decided under the act of March 20, 1810, 5 Sm. L. 161, sec. 4, that where a plaintiff recovered a judgment before a justice, the defendant appealed and the plaintiff recovered less in an award of arbitrators than he did before the justice, he was not entitled to costs, nor could the arbitrators give them to him. This was an action of debt: Downs v. Lewis, 13 S. & R. 198. [426] It is true that this was held not to be applicable where the action was in the form of trespass: Painter v. Kistler, 59 Pa. 331. In the present case, however, we do not have to consider the effect of an award of arbitrators, in which they award a certain sum of money “and costs,” or “ and that the defendant pay the costs.” It is suggested in appellants’ printed argument that the fees of the arbitrators were paid by the plaintiffs and ought not to have been included in the taxation of costs. If this is. true, that item of costs ought to be stricken out. The plaintiffs, however, have printed but a meager portion of the record, and it does not appear that they filed any exception to the^ taxation of costs, nor any answer to the petition of the defendant for the rule to show cause in question. We cannot, be expected to find, upon the record as here presented, that-the plaintiffs paid the arbitrators. As the plaintiffs did not. raise this question and seek to have the mistake corrected in the court below, we would not reverse the judgment upon that-ground alone. In order that the court below may have an opportunity to remedy this inadvertence, if any occurred, we will make such an order as to permit the application to be made in that forum. The specifications of error are dismissed. Judgment affirmed, without prejudice to the right of the-plaintiffs to move the court below to strike out of the taxation of costs the fees of the arbitrators.