Shermer v. Rusling

Philadelphia County Court of Common Pleas

Shermer v. Rusling

1 Miles 415

CourtPennsylvania Court of Common Pleas, Philadelphia County

DecidedJune 29, 1833

StatusPublished

This text of 1 Miles 415 (Shermer v. Rusling) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Philadelphia County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Shermer v. Rusling, 1 Miles 415 (Pa. Super. Ct. 1833).

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Opinion

Per Curiam

(Barbes, President; Coxe, J.; and Pettit, J).—

This question depends upon the construction of the 13th section of the act of the 20th of March 1810 (Purd. Dig., tit. Arbitration), which provides that “if the plaintiff be the appellant, he shall, &c. be bound in recognizance, &c., the condition of which shall be, that if the said plaintiff’ shall not recover, in the event of the suit, a sum greater or a judgment more favourable than the report of the arbitrators, he shall pay all costs that shall accrue in consequence of said appeal, and one dollar per day for each and every day lost by the defendant in attending on such appeal, &c.” It is to be noficed that this section uses the words the defendant; and in the previous section, (12th) providing for the appeal itself, the language is, “ the party appellant, his, her or their agent or attorney shall swear, &c.” And further, that “ the party, his, her or their agent or attorney shall enter such appeal with the prothonotary, &c.,” and throughout speaks of the plaintiffs or defendants respectively as one party. It therefore appears to us that the legislature contemplated, for this purpose, all the defendants or all the plaintiffs as a unit. And this construction is consistent with the practice, and reasonable as to the consequences. The parlies generally appear by attorney, and it is not often that more than one defendant need attend the trial, there being but one issue and one question to determine. And it would be manifestly unjust if a party could not appeal without the risk of an enormous bill of costs against him in consequence of the number of his adversaries. It is not the law to discourage trial by jury, and we are therefore bound to construe the act liberally in its favour, if it were necessary; but the words seem a sufficient warrant for the principle on which we decide the point. We confirm the taxation of the prothonotary.

Appeal and exceptions dismissed,

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Per Curiam

(Barbes, President; Coxe, J.; and Pettit, J).—

This question depends upon the construction of the 13th section of the act of the 20th of March 1810 (Purd. Dig., tit. Arbitration), which provides that “if the plaintiff be the appellant, he shall, &c. be bound in recognizance, &c., the condition of which shall be, that if the said plaintiff’ shall not recover, in the event of the suit, a sum greater or a judgment more favourable than the report of the arbitrators, he shall pay all costs that shall accrue in consequence of said appeal, and one dollar per day for each and every day lost by the defendant in attending on such appeal, &c.” It is to be noficed that this section uses the words the defendant; and in the previous section, (12th) providing for the appeal itself, the language is, “ the party appellant, his, her or their agent or attorney shall swear, &c.” And further, that “ the party, his, her or their agent or attorney shall enter such appeal with the prothonotary, &c.,” and throughout speaks of the plaintiffs or defendants respectively as one party. It therefore appears to us that the legislature contemplated, for this purpose, all the defendants or all the plaintiffs as a unit. And this construction is consistent with the practice, and reasonable as to the consequences. The parlies generally appear by attorney, and it is not often that more than one defendant need attend the trial, there being but one issue and one question to determine. And it would be manifestly unjust if a party could not appeal without the risk of an enormous bill of costs against him in consequence of the number of his adversaries. It is not the law to discourage trial by jury, and we are therefore bound to construe the act liberally in its favour, if it were necessary; but the words seem a sufficient warrant for the principle on which we decide the point. We confirm the taxation of the prothonotary.

Appeal and exceptions dismissed,

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Bluebook (online)

1 Miles 415, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shermer-v-rusling-pactcomplphilad-1833.