Kidd v. Emmett

72 Pa. 150, 1872 Pa. LEXIS 220

• Court: Supreme Court of Pennsylvania
• Decided: November 4, 1872
• Docket: No. 120
• Status: Published

Opinion

The opinion of the court was delivered, by

Thompson, O. J.

— An error occurs in the award of the referees in this case, which renders the judgment uncertain and in fact incapable of execution. The award says, “We find for the plaintiff with costs of suit, all the lands described in the writ of ejectment except twelve acres of the north end of the land described in said writ, to be divided from the land found for the plaintiff by a line to run S. 3| deg. E., across the north end.”

The land was a parallelogram, lying lengthwise north and south, and it is claimed that a line S. 3J deg. E. would strike the twelve acres off the west side, instead of the north end. This presents a case of misdescription. It is a plain mistake of fact, and had the court below been made aware of it before entering judgment on the award it would have been their duty to have referred it back to the same referees for such correction as would be necessary to make the award certain and consistent, but that was not done. We are of opinion that this may be done yet, but we must reverse the judgment so as to enable the court to send back the award for correction. The case of Coleman v. Lukens, 3 W. & S. 37, may be thought to be a precedent against this course of proceeding, but that was not a case of plain mistake, but an award contrary to the terms of the submission. To send it back was the equivalent of sending back the entire subject-matter of controversy to be retried. This was not authorized by the 7th section of the Act of the 16th of June 1836. That case is not a precedent applicable to the necessities of this case.

Judgment reversed, and the record is remitted to be proceeded in as above suggested.