Frost v. Roatch

The opinion of the court was delivered by

Huston, J.

The second section of the act of the 20th March, 1810, makes provision that in certain cases the constable may take a bond from a defendant taken on a capias, for the appearance of the defendant before the justice; and prescribes that such defendant may enter special bail before the justice, or the bail to the constable may enter special bail; and it provides for proceedings on the bail bond; but it would seem we have nothing to do with this section, the suit is not on such bail bond. In many if not in most cases in this state, no bail bond is given. That is a matter where it occurs, between the plaintiff and the constable.

The third section provides for the cases in which the parties appear before the justice; such was the case here. The parties appeared, and the defendant put in his defence; an adjournment from 20th of March to 1st of April, 1837, when both parties appeared, and judgment for plaintiff for $41 85. After the entry, of this judgment on the justice’s docket, we find written, April 1st, “ I become special bail in $90. John Frost, 128 Eighth, st.”

The first question is, was this an entry which bound John Frost, as special bail 1 We have had several cases as to what was a sufficient entry by prothonotaries of special bail; and some on what is a sufficient recognisance of bail on an appeal from a justice. This is not an entry of special bail before a prothonotary, nor of bail for an appeal; for in that stage of the cause no appeal was asked.

The cases cited, King v. Culbertson, (10 Serg. & Rawle, 325,] and Bolton v. Robinson, (13 Serg. & Rawle, 195,) go to prove that where a justice enters the recognisance at large, and inserts what the law does not require, or omits what it does require, it will not be good; but in the last case, an &c. added, would have made it good; and see 5 Watts, 333.

1 Penn. Rep. 149, and 2 Penn. Rep. 432, decide, that a short entry on a docket, (which it is shown was usual in all courts,) was sufficient; and that from it a formal recognisance might be and always is made in a full record of the suit, or on a scire facias. 1 understand the counsel that no objection was made on account that a full recognisance was not written out, and signed by John Frost; but the objection was of another kind. The second section directs as to special bail before the hearing. This was entered after the judgment. The fourth section says, the, party appellant shall become bound with surety in the nature of special bail; and the 5th' section gives the form and effect of such recognisance on appeal; and neither the form nor the effect are precisely the same as what is known as a recognisance of special bail. But in this case there was no party appellant, and of course no bail in nature of special bail on appeal ; no appeal was asked or taken. The sixth section also speaks of an appeal by a freeholder; but has no application to this case.

The ninth section is, “ In all cases where the defendant is a freeholder, or enters special bail to the action, and the judgment shall be for a sum above $5 33 and under $20, there shall be stay of execution for three months; and when the judgment shall be above $20 and under $60, there shall be stay of execution for six months,” &c. &c.

Now, unless in order to reverse' proceedings, we suppose something to have occurred, of which the docket gives no intimation, the special bail here could only have been to the action, and for the purpose of obtaining the stay of execution. After the six months had expired, a sci. fa. issued, and on a plea of nul tiel record, the entry, “April 1,1 become special bail in 90 dollars,” signed “John Frost,” was a good and sufficient minute from which to draw up a formal recognisance, and supported the sci, fa. stating such formal recognisance. As I understand it, after judgment on the scire facias, the defendant John Frost appealed, and on a hearing among other matters, pleaded nul tiel record. The Common Pleas decided that the entry was sufficient, and gave judgment for the plaintiff on that issue; but there was some other plea or pleas, issue or issues, not decided. There is a rule of the Common Pleas as follows.

“ It is ordered that no appeal from an alderman or justice of the peace, be continued more than four terms, unless a legal reason be assigned, or the cause not reached; and if the cause be reached at the fourth term, or at a subsequent term, (having been continued at any former term, without legal ground by either party, or by both parties, or by the court in their absence,) and a legal reason bo not then assigned for putting off the trial, judgment of non pros, shall be entered, in case the plaintiff be appellant; and in case the defendant be appellant, judgment shall be entered against him, for the sum for which the alderman or justice who decided the cause had rendered judgment, with legal interest thereon; provided, that when there shall have been an award of arbitrators filed in this court, upon such appeal, judgment of affirmance of such award shall be entered, and when the award shall have been for a sum of money, the judgment shall be for that sum, together with the interest thereon from the day of filing the award.”

On this rule a judgment was entered, we must suppose on a state of facts bringing the case within the rule; and the third error assigned is, that this judgment entered in pursuance of this rule, is erroneous and illegal; in other words, that the court had no power to make such a rule. It was not denied that courts have power to make rules for the regulation and order and despatch of business. Instead of a formal argument against the power of the court, it was rather intimated that some professional men had doubts, and the decision of this court was wished. This court have no doubt of the power to make such a rule, or of its propriety. For myself individually, I would shorten the time from the fourth to the third term ; and make the rule universal in all cases where a cause was on the issue list, and either party asked a continuance and could show no legal ground for such continuance. Without rules compelling parties to proceed, causes would never be brought to a conclusion. Either party must have the power to bring on the cause. An appellate court, as the Common Pleas was in the case before us, will often find the person against whom a judgment has been rendered, and from which he has appealed, very averse to another hearing; but the court is bound to respect the rights of the other party. The rule in question applies to each party, and applies with equal effect. A nonpros, of the appellant is an affirmance of judgment below ; and there can be no reasonable objection to the same rule being applied to the other party, and affirming the judgment below, if he will not contest it.

Judgment affirmed.