Miller v. Jackson

38 Pa. Super. 477, 1909 Pa. Super. LEXIS 166

Opinion

Per Curiam,

We are of opinion that all of the questions arising upon this appeal were correctly decided by the learned judge below. All that we feel called upon to add to the clear and satisfactory opinion filed by him is a brief discussion of the case of Spring Run Coal Co. v. Tosier, 102 Pa. 342, upon which counsel for appellant principally relies to sustain his contention that the common-law practice of directing the writ of inquiry to the sheriff for the purpose of having damages assessed by a jury to be summoned by him was abrogated by the Act of May 22, 1722. Sm L. 131. A careful examination of that case has convinced us that such conclusion cannot be extracted from it. In the consideration of the direct question involved Justice Trtjnkey had occasion to discuss the mode of assessing damages after judgment by default in a case where a writ of inquiry, or proceeding in the nature thereof, is necessary. The conclusions expressed in his opinion are that in such a case (1) the mode of inquiry prescribed by the statute, is, if demanded by the plaintiff a matter of right; (2) that “the inquiry determines the amount of damages, when in open court, with precisely the same result as a sheriff’s inquisition.” But this was far from deciding that the plaintiff is bound to proceed in the statutory mode. Neither the decision nor the opinion is at all inconsistent with the previous ruling of the Supreme Court in Kohler v. Luckenbaugh, 84 Pa. 258, where it was distinctly declared that the mode pursued in the present case is orderly and regular, notwithstanding the act of 1722.

The order is affirmed at the costs of the appellant.