Summary
affirming the judgment on the opinion of the trial court
Summary of this case from Grimme Combustion, Inc. v. Mergentime CorporationOpinion
November 17, 1950.
January 2, 1951.
Appeals — Bond — Condition — Prosecution with effect — Order of court below set aside — Return of collateral.
Where, in an action to recover a sum deposited by plaintiff with defendant as collateral for an appeal bond in a case in which plaintiff had been the defendant and in which he had been directed to pay a specified sum to the plaintiffs, it appeared that the bond had been conditioned that plaintiff should prosecute the appeal with effect; and that on appeal the appellate court had set aside the order of the court below, without prejudice; it was Held that the condition in the bond had been satisfied and that plaintiff was entitled to the return of his collateral.
Before DREW, C. J., STEARNE, JONES, BELL, LADNER and CHIDSEY, JJ.
Appeal, No. 245, Jan. T., 1950, from judgment of Court of Common Pleas No. 7 of Philadelphia County, Dec. T., 1948, No. 3188, in case of Harry Conston v. New Amsterdam Casualty Co. Judgment affirmed.
Assumpsit.
The facts are stated in the opinion of the court below, per curiam, as follows:
This is an action to recover the sum of $80,000 representing certain collateral deposited by plaintiff with defendant under a written agreement whereby defendant caused its appeal bond in the amount of $151,784 to be filed in the case of Brooks et al. v. Conston et al., Appeals No. 105, 106, 119, 120 of January term, 1948. The matter is before us on a complaint in assumpsit, defendant's answer thereto and plaintiff's motion for judgment on the pleadings.
The plaintiff herein is a party defendant to certain litigation pending in Common Pleas Court No. 1, of Philadelphia County, as of June Term, 1945, No. 3396. Several appeals have been taken to the Supreme Court in this matter. In Brooks et al. v. Conston et al., 356 Pa. 69 (1947), Conston was adjudged to be wrongfully possessed of certain property and was ordered to make restitution and to account for all profit. Pursuant to this order Conston filed an account. The plaintiffs, Brooks et al., filed eighteen exceptions to the account. The trial judge sustained plaintiffs' exception to a credit in the amount of $75,891.56 claimed by Conston for payment of Federal income taxes, and ordered Conston to pay plaintiffs the aforesaid sum with interest. The remaining exceptions were disposed of and an appropriate order entered. Both plaintiffs and defendant filed appeals from that order. Defendant's appeal was filed on January 13, 1948.
On January 12, 1948 Conston applied to the New Amsterdam Casualty Company for an appeal bond in the amount of $151,784. The following day a written agreement was executed and $80,000 was deposited by Conston as a condition to the furnishing of the bond. Plaintiff filed his bond and prosecuted his appeal in due course and in a proper manner. On April 22, 1948 the Supreme Court of Pennsylvania filed its opinion, reported in 359 Pa. 141. The last paragraph of the opinion reads as follows: "For the procedural reasons indicated, we therefore set aside the orders of the court, without prejudice, and remit the record with direction to comply with our decree. Costs to abide the event."
Plaintiff contends that by virtue of the Supreme Court's ruling, he was entitled to the return of the $80,000 deposited with defendant. A demand was made for the return of this sum on May 20, 1948, and upon refusal on the part of the defendant company plaintiff brought this action claiming $80,000 with interest from the date of demand.
The appeal bond was issued in accordance with the provisions of the Act of May 19, 1897, P. L. 67, § 6 (12 P.S., § 1138); that is, the bond was conditioned that the appellant "shall prosecute the appeal with effect." It is settled that the words "with effect" mean that the appeal must be successful: Commonwealth v. Lenhart, 233 Pa. 526 (1912); Commonwealth v. Barfod et al., 160 Pa. Super. 59 (1946).
The defendant company contends that, in sustaining the exception to the credit claimed in the account for Federal income taxes, the trial court thereby adjudged Conston liable to plaintiffs in the amount of $75,891.56, and accordingly ordered defendant to pay the same; that the propriety of the lower court's decision was not passed upon by the Supreme Court although assigned as error, and hence defendant's liability remained intact. We view the matter in a different light. "Supersedeas has been described (Williams v. Bruffy, 102 U.S. 248, 26 L.Ed. 135) as an auxiliary process designed to supersede the enforcement of the judgment of the court below, brought up by writ of error for review." Wilkinson v. United Parcel Service of Pennsylvania, Inc., et al. (No. 2), 158 Pa. Super. 34, 39 (1945). It is our opinion that plaintiffs had a judgment for $75,891.56; that execution on the judgment was stayed by filing the appeal bond, and that the order directing defendant to pay having been set aside, plaintiffs no longer had a judgment against Conston. Hence, the condition in the bond that the appeal be prosecuted "with effect," was satisfied and Conston was entitled to the collateral deposited.
For the reasons assigned judgment is hereby entered for plaintiff.
Defendant appealed.
Raymond A. White, Jr., for appellant.
Thomas E. Comber, Jr., with him Pepper, Bodine, Stokes, Hamilton, for appellee.
The judgment is affirmed on the opinion of the court below.