Kerr v. Martin

Supreme Court of Pennsylvania

Kerr v. Martin

15 A. 860, 122 Pa. 436, 1888 Pa. LEXIS 620

CourtSupreme Court of Pennsylvania

DecidedOctober 22, 1888

DocketNo. 3

StatusPublished

Cited by16 cases

This text of 15 A. 860 (Kerr v. Martin) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kerr v. Martin, 15 A. 860, 122 Pa. 436, 1888 Pa. LEXIS 620 (Pa. 1888).

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Opinion

Opinion,

Mr. Justice Hand :

In the court below an action of ejectment was brought and an award of arbitrators obtained in favor of the plaintiffs. The defendants appealed from the award, filed their affidavit and recognizance for appeal, and paid all costs. The appeal ' complied strictly with the act of assembly. The plaintiffs’ attorneys obtained a rule to show cause why the appeal from the award should not be stricken off for the reason that the sheriff of Clarion county was the only surety upon the recognizance filed, and by virtue of the rule of court he was ineligible as bail, leave of court or a judge thereof "not having been previously obtained. The rule to show cause was made absolute, and the appeal stricken from the record with no opportunity to perfect it. This is the error complained of.

The exception to the action of the court is well taken. It was said in Means v. Trout, 16 S. & R. 349, that the proper course is to call on the appellant, by a rule, to perfect his bail within a specified period, or in default of it to have his appeal quashed. The same was said with emphasis in Koenig v. Bauer, 57 Pa. 168. It is immaterial that the appellant did not offer to perfect the bail, for he should be called on by a proper rule for a perfect recognizance: Adams v. Null, 5 W. & S. 363. The rule of court in this case is not in question. It is proper for the court to control its own officers in this respect, but rules of court are for the purpose of promoting justice, not to prevent it, much less by their mode of execution to set aside an act of assembly. The case of Carr v. McGovern, 66 Pa. 458, does not militate against the practice as established by the cases cited. In that case Thompson, C. J., says, “ there was no appeal taken in fact or in law. It was not simply a defective recognizance, but an essential prerequisite was wanting. The costs were hot paid when they were duly taxed. It was an incurable defect.”

The judgment in this case is reversed, with directions to reinstate the appeal, but leaving the appellees to the remedy indicated.

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Opinion,

Mr. Justice Hand :

In the court below an action of ejectment was brought and an award of arbitrators obtained in favor of the plaintiffs. The defendants appealed from the award, filed their affidavit and recognizance for appeal, and paid all costs. The appeal ' complied strictly with the act of assembly. The plaintiffs’ attorneys obtained a rule to show cause why the appeal from the award should not be stricken off for the reason that the sheriff of Clarion county was the only surety upon the recognizance filed, and by virtue of the rule of court he was ineligible as bail, leave of court or a judge thereof "not having been previously obtained. The rule to show cause was made absolute, and the appeal stricken from the record with no opportunity to perfect it. This is the error complained of.

The exception to the action of the court is well taken. It was said in Means v. Trout, 16 S. & R. 349, that the proper course is to call on the appellant, by a rule, to perfect his bail within a specified period, or in default of it to have his appeal quashed. The same was said with emphasis in Koenig v. Bauer, 57 Pa. 168. It is immaterial that the appellant did not offer to perfect the bail, for he should be called on by a proper rule for a perfect recognizance: Adams v. Null, 5 W. & S. 363. The rule of court in this case is not in question. It is proper for the court to control its own officers in this respect, but rules of court are for the purpose of promoting justice, not to prevent it, much less by their mode of execution to set aside an act of assembly. The case of Carr v. McGovern, 66 Pa. 458, does not militate against the practice as established by the cases cited. In that case Thompson, C. J., says, “ there was no appeal taken in fact or in law. It was not simply a defective recognizance, but an essential prerequisite was wanting. The costs were hot paid when they were duly taxed. It was an incurable defect.”

The judgment in this case is reversed, with directions to reinstate the appeal, but leaving the appellees to the remedy indicated.

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Bluebook (online)

15 A. 860, 122 Pa. 436, 1888 Pa. LEXIS 620, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kerr-v-martin-pa-1888.

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