Irwin v. Hanthorn

Per Curiam,

A scire facias sur mortgage was issued by the plaintiff against the defendants and upon the trial of the issue a verdict was rendered for the defendants. The plaintiff appealed to this court from the judgment entered thereon, and the judgment of the court below was affirmed (1 Pa. Superior Ct. 149). A fi. fa. was afterwards issued to collect the costs. Upon the plaintiff’s petition alleging “that the costs in said case have never been taxed or the amount due ascertained by any process of law whatever ” the court granted a rule to show cause why the execution should not be set aside. From the order discharging this rule the present appeal was taken on October 16, 1896.

The defendants excepted to the sufficiency of the bail on the appeal bond, and on October 21, 1896, a judge of the court below made the following order: “ After hearing, I decline to approve within bond because not signed by the plaintiff, and the insufficiency of the surety offered.” The effect of this order was to leave the appeal in the same condition as if no bail had been entered; and under the Act of June 24, 1895, P. L. 212, an appeal to this court was not effectual for any purpose unless bail for costs of the appeal was given: Marks v. Baker, 2 Pa. Superior Ct. 167; Page v. McNaughton, 2 Pa. Superior Ct. 519. Doubtless the court might, and perhaps ought to have permitted the plaintiff to enter new bail within a reasonable time after the original bail was adjudged insufficient, if proper application had been made; but the record brought up to us fails to show that such application was made, or that a new bond was filed or tendered; and, of course we must be guided by the record.

Even if the motion to quash were not to prevail we would be unable to sustain the assignments of error. The complaint is, that the execution for costs was improvidently issued, because, as we are asked to assume, they had not been taxed by the prothonotary. But whether or not there was such taxation of them, as, in the absence of exception and appeal from the prothonofcary’s action, would, be sufficient to support the execution, and whether or not the costs taxed were specifically such as the law allows are questions which a court of error cannot decide without having before it the record of the proceedings prior to the issuing of execution. This has neither been printed uor brought up ; all that we have before us are the execution docket entries, the executions and what follows. These are not sufficient to show the error complained of. Furthermore the plaintiff does not allege in his affidavit that he filed any exceptions to the fees charged by the sheriff and prothonotary (for the collection of which the execution issued) or that they were illegal, or that he had made any effort to have their legality adjudicated in the regular way. Conceding that the court possesses the inherent power to determine in a summary way the legality of such charges, as well as the party’s bill of costs, the orderly and usual mode of invoking the exercise of the power is by filing exceptions, entering a rule to have the costs taxed or re taxed before the prothonotary, and appealing from his decision to the court of common pleas. The plaintiff does not claim that he attempted to pursue this course; and in the absence of specific exceptions to the fees charged or averment in his affidavit that they were illegal or excessive, the court committed no error in refusing to set aside the execution.

Appeal dismissed at the cost of the appellant.