Commonwealth ex rel. Middleton v. Judges of Orphans' Court

Chief Justice Mercur

delivered the opinion of the court February 5th 1883.

This is a rule to show cause why a writ of peremptory mandamus shall not forthwith issue against the judges of the Orphans’ Court of the county of Philadelphia, commanding them to return the record in a certain case heretofore pending before them, wherein the relator is the appellant, and for which a writ of certiorari had issued from this court. The question now is whether the prothonotary improvidently issued the writ, without recognizance or security having previously been entered or given in the Orphans’ Court?

Under the Act of 11th March 1809, this court had concurrent jurisdiction with the Orphans’ Court to take all such security : Smith v. Ramsay et al., 6 S. & R. 573. This power continued tc exist until the passage of the Act of 29th March 1832, Pur. Dig. 1110, pl. 50. This provided in cases of a definitive sentence or decree of the Orphans’ Court, the'party appealing therefrom should give security by recognizance with sufficient surety, in the Orphans’ Court or before one of the judges thereof. It gave to the Orphans’ Court and to its judges exclusive power to take the recognizance on appeal from its decree: Chew’s Case, 8 W. & S. 375.

It was urged on the argument if no such power previously existed in this court, it is given by the Act of 8th June 1881, P. L. 80. We are not able to find any such grant of power either expressed or implied in that Act. It does not profess to declare in what court the recognizance shall be entered. That is not the object of the Act. Its purpose is to more effectually secure the payment of costs made in this court, and make the return of the record to the court below, obligatory on the party-bringing it here. In order to effect these objects it imposes an additional liability on the party appealing or obtaining a writ of certiorari or of error. It leaves wholly untouched the question in what court the security shall be given.

The discretionary power of the Orphans’ Court as to the extent of the security which it may require on an appeal from one of its decrees is expressly affirmed in Commonwealth v. The Judges of the Orphans’ Court, 10 Barr 37. Leaving this power with the judges of that court evinces wise legislative forethought. They know better than any other tribunal what security is necessary to protect the vast and complicated interests which they are required to guard. It follows that the judges of the Orphans’ Court of the county of Philadelphia violated no law in declining to send up the record in the case wherein the relator had not given such security as the statute requires.

We will direct the prothonotary to hereafter issue no certiorari to bring up the record on an appeal from the Orphans’ Court without being furnished with satisfactory evidence that security has been duly given in that court.'

Motion for a peremptory7 mandamus refused, and rule discharged.