In re Road in Upper Dublin & Whitemarsh Townships

• Decision Date: 31 March 1880
• Citation: 94 Pa. 126
• Parties: In re Road in Upper Dublin and Whitemarsh Townships.
• Court: Pennsylvania Supreme Court

94 Pa. 126

In re Road in Upper Dublin and Whitemarsh Townships.

Supreme Court of Pennsylvania.

March 23, 1880.

March 31, 1880.

March 23d 1880.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY, STERRETT and GREEN, JJ.

Certiorari to the Court of Quarter Sessions of Montgomery county: Of July Term 1879, No. 72.

Charles Hunsicker, for appellant.

B. M. Boyer, contra.

The judgment of the Supreme Court was entered March 31st 1880, PER CURIAM.

The opinion of the court below is no part of the record, which is all that is before us on this certiorari. Joseph Nash might, perhaps, have brought his case on the record by a petition with the necessary averments; but as it stands, we cannot take cognisance of the questions which he has attempted to raise by his assignments of error.

Proceedings affirmed.

Counsel for appellant subsequently moved for a reargument, setting forth, in substance, the following reasons: That on the argument of this case, the case of Powell v. Whitaker, 7 Norris 445, had not been brought to the attention of counsel. That in said case, Ludlow, P. J., reaffirmed the principle laid down by STRONG, J., in Workman v. Mifflin, 6 Casey 362: "The owner is a trustee for the lien holders, and the courts will protect his rights." That in the case at bar, Nash was the mortgagee, his land was taken from him against his protest, and because the mortgagor, Bissinger, had released the damages. That under the authority of the above case, if Bissinger was our trustee, we think the court should have protected us by preventing the mortgagor from releasing. That if the damages belonged to Nash, what right had Bissinger to receipt for him or take money which the law gave him.

The court, in a Per Curiam opinion, filed May 3d 1880, refused the motion for a reargument.