Breading v. Blocher

• Decision Date: 01 January 1857
• Citation: 29 Pa. 347
• Parties: Breading versus Blocher.
• Court: Pennsylvania Supreme Court

Page 347

29 Pa. 347

Breading versus Blocher.

Supreme Court of Pennsylvania.

ERROR to the Court of Common Pleas of Fayette county.

J. B. and A. Howell, for plaintiff in error.—Under the writ of restitution he was entitled to all that he had lost. Such is the judgment of reversal when entered in form: 2 Rich. Prac. 233; Duncan v. Kirkpatrick, 13 S. & R. 274. In this case the writ could only restore the possession and that which remained, and not the fruits which the defendant had used and converted: Baker v. Smith, 4 Yeates 188. The money obtained from a defendant, on reversal, may be recovered back by indebitatus assumpsit: 1 Esp. N. P. 5.

On the reversal the defendant was entitled to restitution, and was not bound to abide the final event of the suit: Ranck v. Becker, 13 S. & R. 43.

Patterson and Kaine, for defendant in error.—The plaintiff was out of possession, and his action for mesne profits cannot be sustained: Caldwell v. Walters, 10 Harris 378; 14 Mass. 6; 17 Id. 299; 10 Pick. 161. An action of assumpsit for use and occupation, in such a case will not lie: Mackey v. Robinson, 2 Jones 170. But his writ of restitution was the end of his claim.

The opinion of the court was delivered by LEWIS, C. J.

A judgment of restitution, given upon the reversal of an erroneous judgment, is conclusive of the matters adjudicated by it. It establishes beyond further question the right of the plaintiff in error to be restored to all things which he has lost by reason of the erroneous judgment. Its justice cannot be rejudged in any collateral proceeding. Its execution cannot be delayed to abide the final result of the suit in which it is rendered. Its object is to restore the parties immediately to the condition they were in when the suit was commenced. If a plaintiff in ejectment, by means of an erroneous judgment, turns the defendant out of possession, he is bound to restore the possession the moment the erroneous judgment is reversed. An entry under judgment is attended by very different consequences from an entry by act of the party without judgment.

In the latter case it is a disseisin, which, if peaceable, gives the party a possession which cannot be taken from him, except upon a trial at law. In the former case, as the law never works injury to any one, the moment the erroneous judgment is reversed the possession acquired under it falls with the judgment, and the party entitled to restitution is not necessarily driven to his action to regain his...