Koecker v. Fidelity Trust

103 Pa. 331, 1883 Pa. LEXIS 162

• Court: Supreme Court of Pennsylvania
• Decided: April 23, 1883
• Docket: No. 403
• Status: Published

Opinion

The opinion of the court was filed

Pee Curiam.

It is true, Hosie v. Gray, 23 P. F. Smith 502, does rule, that, the recognizance of bail in error, where the proceedings were by scire facias on a mortgage, need not be in double the amount of the judgment. The mortgage, however, in that case stipulated that “ the lien and collection of the purchase-money shall be limited and - restricted to the property covered by, and included in, the mortgage.” It was, therefore, not only a proceeding in rem, but no other remedy could be invoked. There was no personal liability. The present case shows no such limited and restricted liability. It does not appear that other property may not be made liable for the debt secured by the mortgage. , Then, under the authority of Brown v. Lovrein, 4 Weekly Notes 538, due regard must be had to the sum recovered; as in a personal action. It was there said, “ prior liens, fire or failure of title, may make the delay a serious injury.” Be that as it may, we think the distinction, when the collection is restricted to the mortgaged property alone, rests on a substantial basis, and-should be recognized in determining the. sum for which the recognizance should be taken. - . , •

In the present ease, Rule. IV. of this court, requiring the sum to be in double the amount recovered applies, and the prothonotary erred in holding otherwise:

And now, April 23d 1883, decision reversed at the costs of the appellee. It is further ordered that' unless the plaintiff in error, within ten days, enter into recognizance with sureties, to be approved by the prothonotary, in double the sum recovered, the writ of error shall not operate as a stay or supersedeas of execution.