Gordonier v. Billings

• Citation: 77 Pa. 498
• Parties: Gordonier <I>versus</I> Billings.
• Decision Date: 10 May 1875
• Court: United States State Supreme Court of Pennsylvania

77 Pa. 498

Gordonier versus Billings.

Supreme Court of Pennsylvania.

March 9, 1875.

May 10, 1875.

March 9th 1875.

Before AGNEW, C. J., SHARSWOOD, WILLIAMS, MERCUR, GORDON, PAXSON and WOODWARD, JJ.

Error to the Court of Common Pleas of Wyoming county: Of January Term 1874, No. 3.

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H. W. Patrick and E. Smith, for plaintiff in error.—The rule of court provides that no judgment shall be entered on a verdict until the verdict-fee be paid to the sheriff. Defendant was not bound to pay the costs until judgment was legally entered; and having filed his deed and paid the costs before that was done, he complied with the verdict: Harmar v. Holton, 1 Casey 249; Ferguson v. Staver, 4 Wright 216; Amick v. Oyler, 1 Casey 508.

McCollum and R. R. Little, for defendant in error.—The decision of the court on the rule to set aside the habere is not reviewable on error: Moyer v. Germantown Railroad, 3 W. & S. 92. The time fixed by the jury in a conditional verdict is conclusive: Treaster v. Fleisher, 7 W. & S. 139; Chew v. Phillippi, 8 Casey 206; Hewitt v. Huling, 1 Jones 35; Gable v. Hain, 1 Penna. R. 264; Brown v. Nickle, 8 Barr 391.

Mr. Justice SHARSWOOD delivered the opinion of the court, May 10th 1875.

We discover no error in the rulings of the learned court on the trial below, and the judgment must therefore be affirmed.

It was an action of ejectment founded on the legal title of the plaintiff below, to which the defence set up was an equity growing out of a parol exchange of land, followed by an exchange of possession and valuable improvements, which were held sufficient to take the case out of the operation of the Statute of Frauds and Perjuries. The jury found a conditional verdict, establishing the defendant's equity and fixing a certain day on or before which the parties respectively were to file a deed, and the defendant to pay the costs.

This then, was in effect, a bill in equity by the defendant to restrain the plaintiff from proceeding at law, and a decree thereon in the defendant's favor. The defendant not having complied with the conditions named, the plaintiff issued a habere facias possessionem.

The defendant took a rule to set aside this writ, under which depositions were taken, which have been returned with this record. The court below discharged the rule.

The question which is presented is, whether upon a writ of error this court have the right to review the determination of the court upon the motion to set aside the execution. This has been settled by an uniform current of decisions in this court adversely to the plaintiff in error. Even before the Acts of Assembly conferring separate equity jurisdiction upon the courts, the determinations of the lower courts upon motion for summary relief on purely equitable grounds were considered as matters of discretion not subject to review. As in Shortz v. Quigley, 1 Binn. 222, where there was a motion to open a judgment on bond and warrant of attorney, given for the purchase-money of land, on the ground of a defect of title, and the court below rejected the defendant's testimony and refused his motion, it was held that no bill of exceptions lay, though one had been tendered and sealed. So in Righter v. Rittenhouse, 3 Rawle 273, when the regularity of an execution depends upon matter of fact de hors the record, it was said by Mr. Justice Kennedy, "whether the court below decided the law correctly or not in relation to this matter, must depend upon how they found the facts involved in it; and how is it possible for this court to review the decision of the court below as to the facts? It appears to me that it cannot be done, because that court is deemed in law to be as competent to ascertain and decide upon the facts in such a case as this:" In Moyer v. The Germantown Railroad Co., 3 W. & S. 91, which was an action of covenant (though erroneously stated in the report to have been an action an the case), there was a conditional verdict, requiring the defendants to do certain things before a day named, the court below had set aside the execution as it appeared by their order, on the ground that the defendants had, before the day named, in good faith made an effort to comply with the verdict, and had, with the knowledge of the plaintiff, actually done what they in good faith believed to be a substantial compliance therewith. "Who," says Mr. Justice Sergeant, "is to judge whether the defendants have complied with the terms imposed by the verdict and to mould the judgment accordingly? The court only can do this, in the exercise of a power over the process on summary application on motion, in which they are for the most part obliged to decide on affidavits and depositions, whether the terms have been fulfilled or not; and these constitute no part of the record on which a writ of error lies to this court, nor do the reasons given by the court below. As this...