Gallatin ex rel. Garber v. Cornman

The opinion of the court was delivered by Smith, J. A transcript of the judgment rendered by justice White, in the above stated action was filed in the court of common pleas of Perry county, and on a fire facias issued thereon, a levy was made on the real estate of John Cornman, one of the defendants. At the instance of John Cornman, this fi. fa. was afterwards quashed, the judgment opened, and upon the issue on the plea of payment, the sum due was to be ascertained, the lien of the judgment to remain in the mean time, and the costs to abide the final event of the suit The cause was then arbitrated, and a report made for the plaintiff for forty-four dollars twenty-three cents, with [116] costs,’from which the defendants entered an appeal. At the trial, on the 7th of April, 1829, a verdict was returned by the jury for the defendants, upon which a motion was made to enter a judgment without costs, which the court overruled, and entered judgment generally for the defendants. Four errors have been assigned by the plaintiff on these proceedings. 1st. That the court erred in refusing to enter judgment without ■costs, since the- appeal. 2d. That the court erred in allowing the defendants the costs paid by them, at the time of appeal, and which embraced the costs on the original suit before the justice. 3d. That, the court erred in allowing the defendants, (who were the appellants,) the fees of their subpoenas, and serving them, their witnesses fees, and daily pay since the appeal, also the jury fee paid to the sheriff for the verdict. 4th. That the execution issued for costs against the plaintiff when no costs -were due to defendants. The errors may all be considered together. It is to be observed in this case, that neither party appealed from the judgment of the justice; but after the transcript of his judgment had been tiled in’ the office of the prothonotary of the court of common pleas, the judgment was, by consent of the parties, opened, and the cause, after issue had been joined, was put to arbitrators, and when they had decided, the defendants, .by an appeal, carried it back to the court of common pleas; it was there tried in the usualform, by a ■jury, and a verdict and judgment rendered for the defendants. It is then a case to which the provisions of the one hundred dollar act, as to costs on an appeal from a justice’s judgment, are not strictly applicable. If, however, the provisions of that act can be considered applicable, the defendants would, beyond all doubt, be entitled to costs on the verdict and judgment, according to the decision of this court, in Flick et al v. Boucher, 16 Serg. & Rawle, 373. By the ene hundred dollar act, it is declared, that on the reversal or abatement of a judgment, the defendant, when he appeals, shall recover costs, if, on the trial, he has produced no other evidence than he exhibited before the justice: here, no other or new evidence was produced, and therefore, under this act, the defendants would be entitled to costs. But I take the proceedings to have been strictly under the act of ihe 20th March, 1810, regülating arbitrations, and how the costs of an appeal from the award of arbitratorsare to be paid. Thé 14th section <of that act, is the one which has :some bearing on the case before us, it provides, that if the defendant, (as here,) be the appellant, the condition of the recognizance shall be, that if the plaintiff in the event. of the suit, shall obtain a judgment for a sum equal to, or greater, or a-judgment as, or more favourable, than the report of arbitrators, the . [117] said defendant shall pay all costs that may accrue in consequence of the appeal, together with the sum or value of the thing awarded by the arbitrators, with one dollar per day, for each and every day that shall be lost.by the plaintiff in attending to such appeal. This section does not provide for costs, where the plaintiff shall not obtain such a judgment as is mentioned in this section. In the case before us, the plaintiff had no cause of action, and did not recover any thing; nor does .that section ©f the act provide, that the defendant shall recover costs, in case he is successful c*n his appeal: such.a case, it would seem .to me, is not provided for by the act. I would then, in such case say, that the law, as' it stood before the one hundred dollar act, and the .arbitration act, is to govern; and therefore, that the costs in this case should follow the final judgment, which was for the defendants generally. The judgment of the court below is therefore to be affirmed. Judgment affirmed.