Commonwealth v. Gould

• Decision Date: 01 March 1912
• Docket Number: 137-1911
• Citation: 48 Pa.Super. 528
• Parties: Commonwealth to use v. Gould, Appellant
• Court: Pennsylvania Superior Court

48 Pa.Super. 528

Commonwealth to use v. Gould, Appellant

No. 137-1911

Superior Court of Pennsylvania

March 1, 1912

Argued October 11, 1911 [Syllabus Matter]

Appeal by defendant, from judgment of C.P. No. 1, Phila. Co.-1909 No. 4,440, on verdict for plaintiff in case of Commonwealth to use of Harry L. Randall v. Isador M. Gould and The National Surety Company.

Assumpsit on an appeal bond. Before Bregy, P. J.

In addition to the facts stated in the opinion of the Superior Court it appeared that on October 2, 1906, Randall conveyed an undivided half part of the premises involved in the ejectment to Brinah Rheinstrom. On October 17, 1908, Randall recovered a verdict in the ejectment, upon which judgment was entered on December 3, 1908.

Verdict and judgment for plaintiff for $ 771.14. Defendant appealed.

Errors assigned were various rulings on evidence and instructions which sufficiently appear by the opinion of the Superior Court.

Affirmed.

John G. Kaufman, with him B. I. DeYoung and V. Gilpin Robinson, for appellants. -- Randall's action is not in the proper court: Wahl v. Wanamaker, 8 W.N.C. 306; Lukens v. Bryson, 9 W.N.C. 540; Given v. Johnston, 16 W.N.C. 424; Smith v. Ramsay, 6 S. & R. 573; Wolff v. Copperfield, 37 Pa. C.C. 684.

The amount of mesne profits must be liquidated by a suit in trespass and cannot be liquidated in a suit in assumpsit on the bond entered sur appeal from the judgment for the plaintiff in ejectment: Warren v. Steer, 118 Pa. 529; Johnson v. Hessel, 134 Pa. 315; Bard v. Nevin, 9 Watts, 328; McCready v. Guardians of the Poor, 9 S. & R. 94; Craft v. Yeaney, 66 Pa. 210; Osbourn v. Osbourn, 11 S. & R. 55; Critchfield v. Humbert, 39 Pa. 427; Lazarus v. Morris, 17 Pa. Dist. 804; Brandmeier v. Pond Creek Coal Co., 229 Pa. 280.

Randall alone cannot sue and recover the whole of the mesne profits: Bennett v. Hethington, 16 S. & R. 193; R. R. Co. v. Bucher, 7 Watts, 33; Phila. & Reading Coal & Iron Co. v. Schada, 11 W.N.C. 20.

The court submitted the wrong measure of damages to the consideration of the jury: Muthersbaugh v. McCabe, 22 Pa.Super. 587; Morrison v. Robinson, 31 Pa. 456

Stanley Folz, with him Leon H. Folz, for appellee. -- The common pleas No. 1 had jurisdiction: Ridley v. McKinley Mut. Beneficial Society, 45 Pa.Super. 511.

The present action was properly brought directly upon the appeal bond, and no precedent action in trespass was required before suing upon that bond: Brandmeier v. Coal Co., 229 Pa. 280; Hazle Twp. v. Markle, 175 Pa. 405; Com. v. Yeisley, 6 Pa.Super. 273; Winchester v. Rich, 40 Pa.Super. 46; Gleeson's Est., 192 Pa. 279; Com. v. Keenan, 228 Pa. 276; Clark v. Morss, 142 Pa. 311; Hershey v. McLaughlin, 17 Pa.Super. 87; Clement v. Courtright, 9 Pa.Super. 45; Slutter v. Kirkendall, 100 Pa. 307.

The action was properly brought by Randall as the only use plaintiff: Memphis, Clarksville & Louisville Railroad Company v. Wilcox, 48 Pa. 161; Saunders v. Gould, 134 Pa. 445; Gotshall v. Langdon, 16 Pa.Super. 158; Com. v. Mahon, 12 Pa.Super. 616; Com. v. Singer, 31 Pa.Super. 597.

The rent received by Gould was the correct measure of damages: Hanna v. Phillips, 1 Grant, 253; Muthersbaugh v. McCabe, 22 Pa.Super. 587; Morrison v. Robinson, 31 Pa. 456; Gleeson's Est., 192 Pa. 279.

Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.

OPINION

MORRISON, J.

This is an action of assumpsit against Isador M. Gould and his surety, the National Surety Company, on a certain appeal bond of which the following is a correct copy:

" Harry L. Randal

C. P. No. 2

v.

June Term, 1906.

Isador M. Gould

No. 3475.

" Appellant having appealed from the judgment of the Court of Common Pleas No. 2, of the County of Philadelphia, entered 18th day of December, A.D. 1908, to the Supreme Court, comes into Court with National Surety Company, his sureties, and they acknowledge themselves bound and indebted to the Commonwealth of Pennsylvania, for the use of Harry L. Randal, in the sum of five thousand dollars ($ 5000) to be levied of their property, real and personal, to be paid said obligee, his certain attorney or assigns.

" Upon this condition, that if the said appellant shall prosecute the appeal with effect and abide the order or decree of the Appellate Court, and pay all costs and damages awarded by the Appellate Court, or legally chargeable against said appellant, and pay all damages for injuries suffered by appellees from the time of the decree entered and all mesne profits accruing after judgment, then the above obligation to be void, or else to remain in full force and virtue.

" Isador M. Gould (seal)

" National Surety Co. (seal)

by Thomas B. Smith,

" Attest: Delmah L. Harris (seal) Res. Vice Pres.

Res. Asst. Sec."

The facts upon which the present suit was founded are as follows: Upon July 27, 1906, Harry L. Randal, above-named use plaintiff, began an action in ejectment against said Isador M. Gould in common pleas No. 2 of Philadelphia county, to recover from the defendant who was then in possession thereof, possession of real estate No. 247 S. 2d street, title to which was in the said Harry L. Randal. The said ejectment suit was so proceeded with that it came on for trial before a jury on October 13, 1908, and upon October 17, 1908, the jury returned a verdict for the plaintiff, upon which verdict, on December 3, 1908, judgment was entered in favor of the plaintiff, thereby affirming the plaintiff's title to said property and giving him the right of possession thereof as against the said Isador M. Gould. From the said judgment in the ejectment case the said Isador M. Gould, on December 18, 1908, took an appeal to the Supreme Court and upon December 22, 1908, entered bail or security by executing and delivering the appeal bond, a copy of which appears above. The said appeal bond was duly executed by the defendants in this action and duly delivered. The said appeal was so proceeded with in the Supreme Court that the judgment of common pleas No. 2, in favor of the plaintiff, was on May 20, 1909, affirmed by the Supreme Court, and thereafter the record in the case was returned to the court of common pleas No. 2.

The defendant, Isador M. Gould, who was in possession of the aforesaid property, No. 247 S. 2d street, at the time of the institution of the above-mentioned action of ejectment remained in possession of the said property throughout the pendency of the above-mentioned action of ejectment and after judgment thereon was entered in favor of the plaintiff on December 3, 1908, and throughout the pendency of the appeal in the Supreme Court, after the return of the record therein to the court of common pleas and until July 8, 1909, on which date the said Harry L. Randal obtained possession of the said premises. Under the terms and conditions of the aforesaid appeal bond, the obligors therein, the defendants in this action, bound themselves to pay to the obligee " all mesne profits accruing after judgment." The recovery in this case was for such mesne profits from December 3, 1908, until July 8, 1909, and the recovery was for the rent which the defendant, Isador M. Gould, received for the use of said premises during that period of time. The defendants being dissatisfied with said judgment appealed to this court. This is the second appeal in the case, it having been before us before on appeal by plaintiff from the refusal of the court below to grant judgment for want of a sufficient affidavit of defense: Com. v. Gould, 43 Pa.Super. 317. In that appeal we did not consider the plaintiff's right to judgment so clear that we felt called upon to reverse the court below and, therefore, the appeal was dismissed without prejudice, etc., and the case allowed to go to a jury trial. But now, on consideration of the present appeal and the able arguments of the respective counsel, we regard the plaintiff's right to recover so plain that we are much inclined to affirm the judgment on the opinion of the learned court below.

We find in the record twenty-seven assignments of error, but the elaborate argument of the appellants' learned counsel does not convince us that the record discloses reversible error. We feel constrained to say that it is hardly profitable, in so plain a case as the one at bar, to incumber the record with twenty-seven assignments of error. However, it sometimes seems that when a case is plain and is well tried in the court below that these facts lead to assignments of error to almost every step taken by the court during the trial. The learned counsel for appellants have presented their argument, on these assignments of error, under propositions (A), (B), (C) and (D), and we will attempt to reply to them in that order.

1 (A). " Randal's action is not in the proper court." We discover no merit at all in this contention. The action is a separate and independent one on an appeal bond duly executed and delivered and although it was given in a suit tried in common pleas No. 2 of Philadelphia county, we are without doubt that common pleas No. 1 of that county had jurisdiction of the subject-matter of the suit. As we understand the record that question was first raised in this court on the first appeal (43 Pa.Super. 317) and when the record of that appeal went back to the common pleas the plaintiff's counsel asked that the case be transferred to common pleas No. 2, but the lower court interpreted its own rules and held that it (common pleas No. 1) had jurisdiction and its construction of its own rules will not be reversed by this court, especially when the appellant has not printed said rules, and when it is impossible to see that the appellants were in any way prejudiced by the suit being brought and carried to judgment in common pleas ...