McGibbeny v. Jefferson Gas Co.

21 A. 5, 139 Pa. 193, 1891 Pa. LEXIS 971

Opinion

Pee. Ctjeiam:

This was an appeal from the order of the court below refusing to stay an execution for costs. A jury had been appointed to assess damages for land taken by the defendant company by virtue of the right of eminent domain. The jury made an award, which was appealed from, and a trial had in the Common Pleas. The defendant paid the award, but refused to pay the costs; whereupon the plaintiff issued an ex-eeution therefor, which the court refused to stay. It was alleged that, as no costs are given by statute, none can be recovered.

It was practically conceded upon the argument at bar that, so far as the trial in court was concerned, the costs would follow as a legal incident of the judgment, and this was probably the correct view. The costs for which the execution issued were made up of attorney’s fee, prothonotary’s costs and plaintiff’s bill, the latter amounting to $72.30. There was nothing upon the face of the bill, nor in the record itself, to show what portion, if any, of plaintiff’s bill was for costs before the jury for assessing damages. If any portion of the costs was recoverable, the plaintiff was entitled to his execution to collect them. If the defendant had cause to complain of any of the items, it was its duty to have the bill taxed in the court below, and the whefb separated from the chaff. There is nothing before us to enable us to do this, even were we inclined to, which we are not.

The appeal is dismissed, at the costs of the appellant.