Commonwealth v. Smith , 1916 Pa. Super. LEXIS 74 ( 1916 )

Opinion by

Trexler, J.,

This case has been before this court in Com., to use, v. Smith, 62 Pa. Superior Ct. 288. The record was remitted to the court below with instructions to enter judgment in accordance to the opinion filed “unless cause be shown to the contrary.” The case arose upon a suit upon several recognizances and we held that a consolidation of the several actions under the Act of March 10,1905, P. L. 35, did not invalidate any of the recognizances; that the purpose of the above act was merely to prevent a duplication of costs. On the return of the record, a petition was presented to the lower court to remit or modify the recognizances under the Act of December 9, 1783, 2 Smiths 84, Section 2. This the courts are permitted to do “according to equity and their legal discretion.” The court below refused to grant the prayer of the petition and we think showed no abuse of discretion in so doing. We quote from its opinion, “The defendant took his chances, upon the defense set out, in his original affidavit of defense. The judgment was opened, and an issue framed, and this issue has been, decided by the court, against the defendant. Therefore, it appears to the court, that the defendant has had his day in court, and is bound by the order and decree of the court, in said case. If the court is to modify or remit..... .according to equity and their legal discretion, does this mean, that when a party denies his liability, and a suit is brought to collect the amount of the recognizances and a final judgment is obtained by the party bringing the suit, at considerable expense and trouble, that then and under those facts, the court should deprive the successful party of the fruit of his litigation, by summarily wiping out the judgment, because it would be a possible hardship upon the defendant. This, as we view it, would not be equity, neither would-it be legal discretion, but would be arbitrary.” The court also questioned its power to remit the forfeiture under the order of the Superior Court. We need not discuss whether the court was right or wrong in its view as to the extent of its power in the premises. The reasons given for the refusal of the petition under its equitable powers are amply sufficient to sustain the order.

Judgment affirmed.