Reese v. Adamson

119 A. 920, 276 Pa. 253, 1923 Pa. LEXIS 565

Opinion

Opinion by

Mr. Justice Simpson,

Defendants appeal from a judgment of the court below awarding a peremptory mandamus against them, and plaintiff moves to quash the appeal upon the ground that, “since the judgment in the case,” defendants have fully complied with the order of that' court, and hence, quoad this appeal, the questions raised have become academic. Appellants’ answer does not dispute the fact of compliance, but alleges the appeal should not be quashed, because to do so might thereafter “subject [them] to the charge of violating the command of the court,” as appearing in the peremptory writ. This, however, cannot be so. When a litigant obtains an order of the court, based on a fact averred by him, he is forever estopped, while the order remains in effect, from asserting, as against his adversary, anything differing from the fact so averred: Edwards’ App., 105 Pa. 103; Garber v. Doersom, 117 Pa. 162; Donnelly v. Public Service Commission, 268 Pa. 345, 350. It follows that the general rule applies and the appeal should be quashed: Winston v. Ladner, 264 Pa. 548.

Appeal quashed.