Becker v. Goldschild

Opinion by

Smith, J.,

This action of trespass was commenced by capias ad respondendum, to which the defendant entered bail. A rule to show cause of action and to quash the writ was granted and, after hearing, the writ was quashed; but no order relating to the costs was made. An execution for costs was issued against the plaintiff, who thereupon obtained a rule to have it vacated, on the ground that, although the court had quashed the capias, no costs had been taxed in the case. It was not alleged that the amount of costs for which the execution issued was excessive or that any of the items were erroneous. The plaintiff did not ask to have the costs taxed; nor did he assign any reason why he should not be required to pay them. The only alleged error set forth in his application was that the costs had not been taxed. The failure to fix the liability for costs, under the act of June 13, 1836, on quashing the capias, was not set up as ground of complaint. After argument the rule to vacate and set aside the execution was discharged.

The costs for which the execution issued seem to be the record fees which are usually noted on the docket of the case by the prothonotary. The argument here on behalf of the appellant is based on two points : first, the failure of the court formally to impose the costs in accordance with the act of assembly, and, second, the alleged irregularity in issuing an execution therefor. As to the first branch, it would be sufficient to say that there is nothing in the record to show that the attention of the court was called to this omission, or that it was relied upon in the court below. On application the court would, no doubt, enter a formal order disposing of the costs. The plaintiff presented reasons for vacating the execution and the court had a right to presume that the petition included all the reasons relied upon for that purpose. Presumably, the case was disposed of in the court below on the ground appearing in the record. By formally refusing to set aside the execution the court decreed, in effect, that the plaintiff should pay the costs. Therefore this objection now lacks foundation. Furthermore the question should have been raised in the court below.

The rules of the court of common pleas of Philadelphia county, evidently contemplate the notation upon the record of certain costs by the prothonotary without more formal taxation. Section 45 of Rule XYI. provides that: “All bills of costs shall be taxed in the first instance by the prothonotary (if taxation be required), subject to an appeal to the court.” It has long been the practice in Philadelphia to allow executions for costs in the first instance, without formal taxation or notice to the plaintiff, in all such cases as the present. Ample provision is made by rule for the protection of the defendant in the execution, from fraud or imposition. See Hart v. Dickerson, cited in 1 Troubat and Haly’s Practice, 541. The practice saves much time to the profession and officers of the court, and no one need be injured by it. It involves a minor question of practice contravening no statute or rule of law. Under the power to make rules for the orderly and convenient despatch of business, the court had ample authority to adopt and enforce this rule of practice. Its value and great convenience cannot be gainsaid.

The order discharging the rule is affirmed.