Commonwealth v. Gilliam
| Decision Date | 29 January 1930 |
| Docket Number | 178-1929 |
| Citation | 98 Pa.Super. 77 |
| Parties | Commonwealth of Pennsylvania to Use, Appellant, v. Gilliam et al |
| Court | Pennsylvania Superior Court |
Argued October 16, 1929.
Appeal by plaintiff from judgment of C. P., Philadelphia County-1923, No. 6043, in the case of Commonwealth of Pennsylvania, to use of Harry L. Randal v. Lloyd V. Gilliam Edna M. Gilliam, Nicolo Angeletta and Ellias W. Evans.
Assumpsit sur recognizance on appeal from a decree refusing an injunction. Before Audenried, P. J.
The facts are stated in the opinion of the Superior Court.
The court refused to enter judgment for plaintiff for damages incurred prior to the injunction proceedings, and entered judgment for plaintiff in the sum of $ 34.02. Plaintiff appealed.
Error assigned was, among others, the judgment of the court.
Michael J. O'Callaghan, and with him Albert T. Bauerle, for appellant. -- The court erred in holding that Section I of the Act of June 12, 1879, P. L. 177, providing that the pendency of an appeal from the refusal of a preliminary injunction shall not suspend proceedings in the original suit, applied to the case at bar: Commonwealth v Hill, 185 Pa. 385; Platt-Barber Co. v. Groves, 193 Pa. 475.
The appeal of the defendants from the decree of the court refusing a preliminary injunction, and the entry of recognizance, was a supersedeas, preventing plaintiff from recovering possession of his property: Rhodes v. Terheyden et al., 272 Pa. 397; Parry v. First National Bank of Lansford, 270 Pa. 556; Evans v. McDonald Construction Co., 284 Pa. 593; Com. v. Lenhart, 233 Pa. 526; Estate of Daniel Gleeson, 192 Pa. 279; Commonwealth v. Gould, 48 Pa.Super. 528.
Thos. R. Hall, for appellee, but no printed brief.
Before Porter, P. J., Trexler, Keller, Linn, Gawthrop, Cunningham and Baldrige, JJ.
The property of the Gilliams located at 6110 Oxford Street, Philadelphia, was sold by the sheriff to the appellant, the execution creditor, and duly conveyed to him on July 18, 1924.
The possession of the property was in Lloyd V. Gilliam and his wife, Edna M. Gilliam, who refused to surrender it. A citation was issued under the Act of April 20, 1905, P. L. 239. On July 22, 1925, the appellant obtained a judgment for possession of the property and the sum of $ 1,792.55 was assessed as damages for illegal detention. On September 30, 1925, the Gilliams filed a bill in equity against the appellant praying for an account and for a conveyance of the Oxford Street property. On October 15, 1925, the appellant caused a writ of possession for the premises in dispute to be issued on his judgment. The Gilliams thereupon applied for a preliminary injunction to restrain him from proceeding with this writ. On November 14, 1925, the court refused to grant an injunction; an appeal was taken to the Supreme Court, and a bond was filed December 3, 1925. The decree of the lower court was affirmed. See Gilliam et al. v. Randall, 285 Pa. 377.
The present action was then brought in the name of the Commonwealth for the use of the appellant against Lloyd V. Gilliam and Edna M. Gilliam as principals, and Angeletta and Evans as sureties, in the appeal bond. The appellant sought to recover:
First: The sum of $ 1,792.55 represented by a judgment he obtained on July 22, 1925, against the Gilliams as damages for the unlawful detention of No. 6110 Oxford Street up to July 13, 1925, with interest thereon.
Second: The sum of $ 302 as damages for the unlawful detention of the property from July 13, 1925, to October 15, 1925.
Third: The sum of $ 550 as damages for the unlawful detention of the property from October 15, 1925, to March 5, 1926.
Fourth: The sum of $ 30 for the cost of printing appellee's paper books on the Gilliam appeal.
An affidavit of defense was filed raising questions of law involving the right of the plaintiff to recover under the bond. The lower court held that the statement of claim set forth a valid cause of action so far as it related to the fourth item amounting to $ 30 for costs of printing, " and that it sets forth no other valid cause of action."
The condition of the bond in suit reads as follows:
" Now the condition of this obligation is such that if the said appellants shall prosecute the appeal with effect and shall pay the amount finally adjudged to be due upon said order, judgment or decree, including legal interest and costs and will not commit or suffer to be committed any waste on the property in dispute, and shall pay all costs and damages by the appellate court or legally chargeable against said appellees from the time of the decree entered, and all mesne profits accruing after judgment, if any, then the...
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