Widening of Conshohocken Avenue , 12 Pa. Super. 573 ( 1900 )

Opinion by

Beaver, J.,

A mandamus execution is not a writ which issues, of course, at the suggestion of the plaintiff nor as a matter of strict legal right without more. It must be especially allowed by a court of competent jurisdiction. It follows, therefore, that its allowance is more or less a matter of discretion. Since Sedgeley Ave., 88 Pa. 509, the power of the court of quarter sessions to issue •such a writ has not been questioned. In the present case the grounds upon which this discretion was exercised and the writ originally allowed do not appear, and indeed, as has been often pointed out, the appeal in a case like the present operates merely as a certiorari, and we are to consider only the jurisdiction of the court and the regularity of the proceedings, as shown by the record.

The appellant complains of two several decrees, the first iu which “it is ordered that the order of November 22, 1898, awarding a writ of mandamus in favor of William H. H. Achuff be and the same is hereby vacated, which was dated May 18, 1899, and the other in which a rule to show cause why an alias writ of mandamus against the city of Philadelphia should not-issue in favor of William H. H. Achuff in the sum of $7,000, with interest from July'25, 1898, and costs, was discharged June 12, 1899.” Whether it be, as suggested by the appellee, that the appeal by the city from the award of viewers in the quarter sessions to the court of common pleas was still pending, or for other cause or causes which do not appear upon the record in any way, we do not know but we are bound to presume that-the court below had some sufficient reason for vacating an order awarding a mandamus to the plaintiff, and afterwards in discharging the rule to show cause why an alias writ of mandamus-should not issue in his favor. If, as suggested, the appeal to the common pleas is still pending, that in itself would have been sufficient justifiction for both of the decrees. As to whether or not the assistant city solicitor had authority to make the agreement by which it is alleged the appeal was withdrawn or-whether or not such an agreement in and of itself constituted a withdrawal, without the consent or sanction of the court, we need not now determine. It is sufficient for the purposes of this case that we give effect to the presumption of foundation in fact, and of sufficiency of the reason which must always be held to attach to the action of a court of competent jurisdiction, acting within the limits of its discretion, when nothing to the contrary appears upon the record. Kensington Turnpike Co., 97 Pa. 260, in no way conflicts with this conclusion. The question there was the striking off a judgment of confirmation more than a term after its entry bjr the court. The restoration of the judgment carried with it the mandamus execution. The question is here presented, is there a judgment of confirmation ? Both of the decrees of the court below are affirmed and the appeal is dismissed at the cost of the appellant.