Johnson v. Hessel

• Decision Date: 21 April 1890
• Docket Number: 145
• Citation: 19 A. 700,134 Pa. 315
• Parties: M. T. JOHNSON, TO USE, v. HENRY HESSEL ET AL
• Court: Pennsylvania Supreme Court

19 A. 700

134 Pa. 315

M. T. JOHNSON, TO USE, v. HENRY HESSEL ET AL

No. 145

Supreme Court of Pennsylvania

April 21, 1890

Argued April 1, 1890

APPEAL BY DEFENDANTS FROM THE COURT OF COMMON PLEAS NO. 3 OF PHILADELPHIA COUNTY.

No. 145 January Term 1890, Sup. Ct.; court below No. 669 March Term 1888, C.P. No. 3.

On May 4, 1889, Moses T. Johnson, to the use of Clinton S. Fritz brought assumpsit against Henry Hessel, the Real Estate Title, Insurance and Trust Company, and others, upon a recognizance taken and acknowledged before the prothonotary of the Supreme Court on July 5, 1888, on the purchase of a writ of error, and of the form following:

"We Henry Hessel, the Real Estate, Title, Insurance and Trust Company, of Philadelphia, etc., severally acknowledge to owe the above-named defendant in error, the sum of $1,200, upon condition that the above-named plaintiff in error prosecute his writ of error with effect; and if judgment be affirmed or the writ of error be discontinued or non-prossed, that he pay the debt, damages and costs adjudged or accrued upon such judgment, and all other damages or costs that may be awarded upon such writ of error, and for the return to the court below of the record, with the remittitur, or else we will do it for him."

The plaintiff's statement itemized the damages claimed, to the amount of $1,200, as follows:

Rental value of premises from the date of judgment in Court below May 16, 1888, to February 26, 1889, $550. Injury done to premises by said Henry Hessel, $100. Special damages occasioned by the unjust detention of the premises, $550.

At the trial on October 9, 1889, the following facts were shown on the part of the plaintiff: On May 16, 1888, a judgment in ejectment for certain premises, in the city of Philadelphia, was entered in the court below in favor of M. T. Johnson, agent, and against James P. Rossiter, by virtue of a warrant to confess judgment contained in a lease between said parties. Having made a lease of the premises to Clinton S. Fritz, Johnson marked this judgment to his use. A writ of habere facias possessionem was issued on the judgment, to which the sheriff made return that he found the first floor and cellar of the premises "in the possession of one Henry Hessel, who claims by a title paramount to the defendant in these proceedings, as appears by his affidavit" annexed to the return. Thereupon, on petition of the use plaintiff, a rule was granted upon the sheriff to show cause why he should not proceed to execute the writ of habere facias, and subsequently the court made the rule absolute. Henry Hessel then took a writ of error to have said order reviewed by the Supreme Court, and the recognizance here sued on was given for the purpose of obtaining that writ. The order of the court below was affirmed by the Supreme Court, on February 18, 1889: Hessel v. Johnson, 124 Pa. 233, and on April 29, 1889, the record, with remittitur, was returned and filed in the court below. All the costs on the writ of error, and all other costs of the case, were duly paid and discharged.

During the pendency of the writ of error, Hessel remained in the possession and enjoyment of the portion of the premises claimed by him, without paying any rent therefor to the plaintiff. The testimony tended to show that the rental value thereof was $25 per month.

At the close of the testimony for the plaintiff, the defendants offering no testimony, the court, GORDON. J., affirmed the following point presented by the plaintiff, instructing the jury accordingly:

1. If the jury believe the evidence on behalf of the plaintiff, he is entitled to recover from the defendants, as damages in this action, the rental value of the premises at the northwest corner of Tenth and Race streets, in the city of Philadelphia, from the date of the judgment in ejectment in the Common Pleas court to the date of the affirmance of the said judgment by the Supreme Court, in the suit in which the bond was given upon which this suit was brought.

The jury rendered a verdict for the plaintiff for $360, and judgment was entered thereon; whereupon, the defendants took this appeal, assigning for error:

1. The instruction in affirmance of the plaintiff's point.

Judgment reversed.

Mr. William C. Mayne (with him Mr. Henry C. Thompson), for the appellants:

The manifest error of the court below, in its instruction to the jury, consists in ignoring the conditions of the recognizance. There being no debt or damages in the judgment in ejectment, which was for possession only, and no damages being awarded upon the writ of error, there were but two conditions to be performed under the recognizance, to wit, payment of costs, and the return of the record, with the remittitur, to the court below. As the record shows, each of these conditions was promptly complied with. No condition for the payment of alleged rental values was incorporated in the obligation. If the plaintiff desires to recover any alleged mesne profits, his remedy is under the act of June 11, 1879, P.L. 125, in accordance with the practice pointed out by this court in Warren v. Steer, 118 Pa. 529.

Mr. John Hampton Barnes and Mr. Rowland Evans, for the appellee:

1. The bond sued on was the usual one given in cases where the liability is not confined to costs, and is in the words prescribed by act of June 16, 1836, P.L. 762, and by Rule No. IV. of this court. The use plaintiff, by the lease to him from Johnson, became responsible for the rent of the entire premises, and he was kept from the occupancy of that portion of them retained by Hessel, by reason of the taking of the writ of error. If the word "damages," in the recognizance, does not include such natural results of the taking of the writ of error as were thus suffered by the plaintiff, it is idle and meaningless, and the plaintiff is left without protection against such a wrongful holding under cover of a writ of error.

2. In Hessel v. Fritz, 124 Pa. 229, the facts in which are identical with those in Hessel v. Johnson, 124 Pa. 233, this court decided, upon a motion which does not appear in the report of the case, that the writ of error was a supersedeas. Hessel, therefore, remained in possession, while the writ was pending, under the direct authority of this court; and that authority would not have been exercised except in view of the fact that the plaintiff was protected by the recognizance against injury arising therefrom. Warren v. Steer, 118 Pa. 529, does not apply, as it merely decides that on a writ of error to a judgment in ejectment, the sureties are not responsible for mesne profits, but these must be recovered by proceedings under the act of June 11, 1879, P.L. 125. In the present instance, Hessel was not the defendant in the ejectment, and his writ of error was taken, not upon the judgment, but upon the execution.

3. Moreover, in Warren v. Steer, supra, this court did not decide what was the measure of responsibility of bail in error in an action of ejectment, but merely held that as to the matter of assessing damages, the statute 16 & 17 Car. II. is supplied by our own legislation. The act of ...