Moravian Seminary v. Borough of Bethlehem

• Court: Pennsylvania Supreme Court
• Writing for the Court: MR. STERRETT, CHIEF JUSTICE
• Citation: Moravian Seminary v. Borough of Bethlehem, 26 A. 237, 153 Pa. 583 (Pa. 1893)
• Decision Date: 20 March 1893
• Docket Number: 331
• Parties: Moravian Seminary, Appellant, v. Bethlehem Borough

26 A. 237

153 Pa. 583

Moravian Seminary, Appellant, v. Bethlehem Borough

No. 331

Supreme Court of Pennsylvania

March 20, 1893

Argued March 9, 1893

Appeal, No. 331, Jan. T., 1893, by plaintiff, from order of C.P. Northampton Co., June T., 1891, No. 26, discontinuing condemnation proceedings.

Appeal from report of viewers condemning land for street. Petition for mandamus execution.

The facts appear by the opinion of the Supreme Court.

Errors assigned were, (1) in discontinuing condemnation proceedings (2) without requiring defendant to pay plaintiff's costs and expenses; (3) in refusing to award mandamus execution (4) in refusing to amend decree so as to include plaintiff's costs and expenses, asked for the additional reason that defendant's answer shows that defendant was advised by counsel that defendant had not sufficient resources to pay, within the constitutional prohibition, etc.; quoting decree and exceptions.

Henry W. Scott and W. E. Doster, for appellant. -- Even if judgment was irregularly entered on Nov. 28, 1891, it is conclusive until set aside or reversed by defendant: Drexel's Ap., 6 Pa. 272. When the verdict is indexed, it is a judgment: Stephens v. Downey, 53 Pa. 424; Beyerle v. Hain, 61 Pa. 226; Britton v. Stanley, 1 Whart. 267; Maguire v. Burton, 1 Miles 16. No discontinuance could be permitted which could deprive us of our judgment: Meyers v. Borough of South Bethlehem, 30 W.N. 218. The right to execution process is of common law, the forms of procedure are regulated by statute. The refusal of the court to award execution is final, and for an indefinite stay of such process error lies: Patterson v. Patterson, 27 Pa. 40; Pontius v. Nesbit, 40 Pa. 310; Feagley v. Norbeck, 127 Pa. 238; South Bethlehem v. Weiss, 30 W.N. 218; Com. v. Taylor, et al., 36 Pa. 263; O'Donnell v. School Dist., 133 Pa. 162; Pollock v. Lawrence Co., 2 Pitts. R. 137; Monaghan v. Phila., 28 Pa. 209.

If the court below had authority to permit a discontinuance of condemnation proceedings on the part of the defendant so as to affect our judgment, it was an excess of power and abuse of discretion to do so upon any other condition than payment to plaintiff of all expenses incurred in good faith, in this experimental litigation; from such action error lies: Catlin v. Robinson, 2 Watts, 379; Elliott on Roads and Streets, 211; Marshall v. Grove, 10 Pa. C.C.R. 532. The act of 1891 did apply: Long's Ap., 87 Pa. 114; Lane v. White, 140 Pa. 99.

Harry C. Cope and O. H. Meyers, J. B. Kemerer with them, for appellee, cited, on the validity of the judgment: Brown v. Honneter, 16 S. & R. 139; Van Vliet v. Conrad, 95 Pa. 494; Britton v. Stanley, 1 Whart. 267; Lance v. Bonnell, 14 W.N. 385; Morris's Est., 6 Phila. 134. On the question of discontinuance: Myers v. Borough of South Bethlehem, 30 W.N. 218; Funk's Adm. v. Waynesboro Sch. Dist., 18 W.N. 447; Elliott on Streets and Roads, 209; O'Neill v. Freeholders, 41 N.J.L. 161. On the right to mandamus: School Dist. v. Hill, 35 Leg. Int. 242; Com. v. Pittsburgh, 34 Pa. 523; Williamsport v. Com., 90 Pa. 503; Price v. Com., 1 Whart. 1; Com. v. Lancaster Co., 6 Binn. 5; Board of Health v. Harrisburg, 2 Pears. 242; Com. v. Com's, 2 Whart. 286; Cavanaugh v. School Dist., 6 Pa. C.C. 35; People v. Frink, 32 Mich. 96; People v. Edmonds, 19 Barb. 472; State v. Graves, 81 Am. Dec. 639; Dane v. Derby, 89 Am. Dec. 722. On the payment of costs: 2 Dillon Municipal Corporations, § 458; 2 Ib. § 596; Stilson v. Lawrence Co., 52 Ind. 213; State v. Johnson's Adm'r, 52 Ind. 197; Mayer v. Walter, 64 Pa. 286; Lewis on Eminent Domain, § 658; Marshall v. Grove, 10 Pa. C.C.R. 532; Grubb's Ap., 82 Pa. 29; Wilton's Ap., 87 Pa. 84; Goodman's Est., 23 W.N. 235; Good v. Mylin, 8 Pa. 51; Alexander v. Herr, 11 Pa. 537; Sensenig v. Perry, 113 Pa. 115; Wadlinger, Costs, 362; Marvine v. Drexel, 1 W.N. 323; Porter v. English, 1 Phila. 85; Ins. Co. v. Corbin, 12 Phila. 257. On application of act of 1891: Taylor v. Mitchell, 57 Pa. 212; Endlich on Interp. of Statutes, §§ 273, 282.

Before STERRETT, C.J., GREEN, WILLIAMS, McCOLLUM and THOMPSON, JJ.

OPINION

MR. STERRETT, CHIEF JUSTICE

This appeal by the Moravian Seminary is from decrees of the court below permitting the borough defendant to discontinue condemnation proceedings, and refusing to award a mandamus execution against said defendant, etc.

In October, 1889, the borough passed an ordinance providing for extension of Main street through the seminary grounds. After viewers were appointed to assess damages for the land taken, etc., the proceedings were quashed, for irregularities therein, and the ordinance was repealed. In July, 1890, a new ordinance, for same purpose, was passed, and damages in favor of the seminary were assessed by viewers at $15,000. From that assessment an appeal was taken to the common pleas, and on trial of the issue a verdict was rendered, November 28, 1891, in favor of the seminary for $35,000. Same day, the jury fee was paid and judgment entered on the verdict. Two days thereafter, as the record shows, time for filing reasons for a new trial was enlarged until Monday, December 7, 1891, but no motion or reasons for new trial appear to have been filed.

In January, 1892, a rule was granted to show cause why proceedings should not be discontinued. To this, plaintiff made answer that, in the circumstances, the court was powerless to authorize a discontinuance; and further, that heavy expenses had been incurred by plaintiff, which in any event should be paid by defendant before it should be permitted to abandon the condemnation proceedings, etc. The master, to whom the matter was referred by the court, reported that the lawful taxable costs were $745; that the plaintiff had incurred other necessary expenses, viz.: surveyor's fees for drafts, printing bills and counsel fees amounting to $2,242.75, all of which sums were expended in good faith, and were reasonably worth the several sums so paid; but, because, in his opinion, said expenses did not create a legal liability, the master recommended a decree permitting defendant to discontinue proceedings upon payment of said $745, taxable costs. Adopting that recommendation, the learned court made the orders recited in the first and second specifications of error.

The record, as presented to us, exhibits proceedings, some of which are far from being regular and consistent. We shall not attempt to reconcile them, except in so far as it may be necessary to do so in disposing of the questions directly involved in this contention. Some of the irregularities or defects referred to are perhaps due to the fact that proceedings were had of which no entry was made on the record. That may account for the non-appearance, in the record, of the motion for new trial. Whenever such omissions occur, it is the duty of counsel to apply to the court and, upon proper proof, have the record amended so as to conform to the facts.

The entry of judgment, on the day the verdict was rendered, was of course irregular and unauthorized, and could not stand in the way of a motion for new trial made within the prescribed time, or of any action of the court involving, directly or indirectly, arrest of judgment or setting aside the verdict. The act of March 23, 1877, P.L. 34, providing that verdicts shall be liens, etc., does not authorize the entry of judgments out of the regular course. But, while the record fails to show that a motion for new trial was made and pending at the time the order authorizing a discontinuance was made, the court evidently acted on the assumption that such was the fact. In the 5th paragraph of its petition for mandamus execution, the plaintiff asserts that "on November 30, 1891, (two days after the verdict was rendered) a motion was made for a rule for new trial," etc. We are therefore warranted in assuming that the motion for new trial was pending when the discontinuance was authorized. If, in the circumstances, the court had the right to permit or authorize discontinuance of the proceedings, on proper terms, the irregularly entered and unauthorized judgment did not stand in the way; and a discontinuance actually entered, in pursuance of precedent authority, would by necessary implication carry with it the verdict.

Whether the court had the power to authorize the discontinuance or not, depends on the law as it stood prior to the passage of the act May 16, 1891, sec. 7, P.L. 78. The viewer's report was filed in the quarter sessions, April 13, 1891 more than thirty days before the act was passed. In addition to that, the appeal to the common pleas was filed in that court ...