Hassenplug's Appeal , 1884 Pa. LEXIS 226 ( 1884 )

Mr. Justice Trunkey

delivered the opinion of the court,

In Clark’s Case, 22 Pa. St., 466, it was said that in Pennsylvania the courts have the powers of a court of chancery in proceedings to determine whether or not a person is a lunatic, and may do justice in the disposition of costs. And that under the Act of 1849, P. L., 663, a decree may be made that either party shall pay all the costs, or that the parties interested shall paj^ the costs in such proportions as the justice of the case may require. There, after a jury before the commissioner .had disagreed, and before another jury had been called, an interlocutory decree was made that the alleged lunatic pay all the costs then accrued, and it was held that such decree was properly made because the power to make it was included in the power to dispose of the costs in the final decree. „

Section 9 of the Act of 1836, P. L., 595, required the judge holding an inquisition, in case the party with respect to whom the application was made shall not be found a lunatic, and the judge believed there was not probable cause for the application, to so certify, and thereupon the party who made the application shall pay all the costs. The purpose or defects of that section need not be remarked. Ñor need we note the English rule that had been followed by the courts prior to the A'esting in them chancery powers, under which, in case the party was found a lunatic, the costs were usually paid out of his estate; and if not so found, neither he nor the person who made the application could recover costs.

The Act of 1849 expressly makes it the duty of the Court of Common Pleas out of which any commission in the nature of a writ de lunático inquirendo shall issue, to decide and direct who shall pay all the costs attendant upon the issuing and execution of such commission, or to apportion such costs as the justice of the case may require. That Act is remedial, and ought not to be construed so strictly as in a measure to defeat the object of the legislature. It put an end to the question as to the power and duty of the court to make a decree respecting costs, whether or not the party alleged to be insane was so found. It is said by the appellant that the Act relates only to the costs accrued at the return of the commission. But it is the right of a party found to be a lunatic to traverse the inquisition, and the end of the proceeding founded on the writ is not reached till judgment on the traverse. The costs accruing until the final judgment are attendant, that is, consequential, or immediately following, upon the issuing and execution of the commission. There may be a distinction between costs accrued before the return of the commission and those which accrued after, but we are of opinion the intendment of the statute includes all costs until final judgment in the proceeding.

The decree is unassailed for any cause shown in this court, save the want of power to make it, and therefore no reason appears for reversal.

Decree affirmed, and appeal dismissed at costs of the appellant.