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5 Lancaster B. 1 (1873-1874)

handle is hein.statereports/lancb0005 and id is 1 raw text is: ~Ite crntcas~ ter Three Dollars a year in advance. Teri Cents per Number. W VOLUME V. Common Pleas of Lancaster County. THE FIRST NATIONAL BANK OF MOUNT JOY vs. B. M. GREIDER. 1. An officer or employee of a Bank subpoenaed and compelled to attend Court in an action where the Bank is interested is entitled to witness fees and mileage tq be taxed in the costs. 2. No attorney fee should be taxed in the costs, in cases of appeals from awards of arbitrators. 3. No attorney fee should be allowed for services in the Supreme Court where the judgment in the court below is marked satisfied before the return day of the writ of error. Exception to Prothonotary's taxation of costs. Smith for Plaintiff. Ellmaker for Defendant. Opinion delivered April 19, 1873, by Liv- INGSTON, P. J. The bill of costs filed this case shows that it was regularly taxed by the Prothonotary on December 6, 1872. On December 12, 1872, Defendant's counsel, filed the following exceptions to the taxation: 1. The defendant excepts to allowance of two attorney fees of $3 each for Plaintiff's attorneys as claimed in the bill. 2. The charges for A. Gerber, Cashier, and M. B. Peiffer, President of First National Bank, are objected to, the bank being plaintiff in the case. 3. Also the charges for subpoenaeing them, embraced in Jacob Shelly's charge for notify- ing witnesses. 4. Also the $3 judgment fee claimed by Mr. Smith, attorney for plaintiff, and same amount claimed for same as fee in Supreme Court, the writ of error being discontinued before return day. Debt, interest and costs, then taxed, be- ing paid April 20, 1872. On December 6, 11872, plaintiff's counsel filed the following exception : The Prothonotary erred in the above taxa- tion, as A. Gerber and M. B. Peiffer attended as witnesses, and not as agents of the Bank. The action was assumpsit, brought by the Bank against Greider October 2, 1869. On November 10, 1869, an award of arbitrators was filed finding no cause of action, and on the same day an appeal was entered by plain- tiff. The amount of costs taxed and paid on appeal by plaintiff, was $27.36, this included an attorney fee of $3.00, which was paid by Prothonotary to defendant's counsel. On January 28, 1871, the cause was tried in Court, a verdict rendered for plaintiff for $565.- 87, and same day judgment nisi entered. On September 12, 1871, a recognizance for a writ of error was filed. And on April 20, 1872, prior to the meeting of the Supreme Court, the judgment in this Court, was marked paid, satisfied and released by plaintiff's attorney. LLIAM B. WILEY, PUBLISHER. MAY 31, 1873. The 2d and 3d, exceptions filed by defend- ant's counsel cannot be sustained. The suit was brought by the bank against the defend- ant, and we see no valid reason why the Pres- ident, Cashier, Clerk, or any other employee of plaintiff, when subpcenaed and compelled to attend Court as a witness, in any action brought by or against it, should not be allowed witness fees and milage. No authorities were produced on the argument, nor have we been able to find any in our examination of the case, which would exclude them. We think the Prothonotary erred in sustaining the second exception filed by defendant's counsel, and that the exception of plaintiffs counsel to his taxation is well taken and must prevail. The 1st and 4th, exceptions filed by defend- ant's counsel, seem to be duplicates, each em- bracing the same question, or rather questions, Whether the defendant shall be compelled to pay one, two or three attorney fees, of three dollai s each, in the case before us ? One at- torneys fee has already been paid in the case and drawn by defendant's counsel, and plain- tiff's attorney now claims that he is entitled to two attorney fees of three dollars each, both of which we find the Prothonotary has allowed in his taxation of costs. The Act of February 22, 1821, 7 Smith's Laws, 367, to which we have been referred by plaintiffs counsel, declares that the attorneys at law of the several Courts of this Common- wealth shall be entitled to receive for issuing preecipe for the commencement of any suit, entering an appearance on the Prothonotary's Docket, if the said is ended on or before the first day of the first term, $1.50, every suit ended after the first day of the first term, and before judgment, discontinuance, or non pros, the further sum of $1.50; Every suit prose- cuted to judgment, discontinuance or non pros, $3.00. We have always doubted the propriety, as well as legality of the act of the Prothonotary, in taxing an attorney fee in the costs on an ap- peal from an award of arbitrators in any case. The Act of Assembly regulating appeals from awards of arbitrators allows the party against whom the award is entered, twenty days with- in which he may appeal therefrom, and if within that time. the successful party issues an execution, it will be set aside at his costs, on motion, upon an appeal being taken. Such award, does not become a judgment, until the expiration of the twenty days. If no appeal be taken, it becomes an absolute judgment as soon as the time allowed for appeal expires; but if appealed from it is at once shorn of all the properties of a judgment, (except this, that it remains a lien upon the real estate of the appellant until the cause is finally disposed of, and the award reversed by virdict and judg- ment, and if judgment be finally obtained Sublication Office, No. 13 th Duke Street, Lancaster, pa NUMBER 1. against the party against whom the award was entered, the lien of such judgment relates back to the date of the award,) and no execution can issue until the award is confirmed by a judgment of the Court, or the appeal be with- drawn. It is true the practice here has been to tax an attorney fee in the costs in all cases of ap- peals from awards of arbitrators, and the only decisions we can find bearing upon this p6int are equally divided. In the case of Butcher vs. Scott, in the Common Pleas of Philadelphia, 1st P. L. J. Rept., 287, an attorney's fee was allowed, on exception, to be taxed with the costs on appeal from an award; while in the case of McCulla vs. Apple, found in 3d Lus. Leg. Obs, 87. it was disallowed. In a case like the present, where the award is against the plaintiff, if he is obliged to pay an attorney fee on appeal, it is as a matter of course paid to defendant's counsel. The plain- tiff follows up his appeal and is successful, ob- tains a verdict against the defendant, and judgment upon his verdict, then the costs come to be taxed again by Prothonotary, and in this taxation the plaintiff's attorney, who brought the suit and prosecuted it successfully to find judgment, is unquestionably entitled to an at- torney fee under the Act, and the Prothono- tary must tax it. le must also tax all other costs that have accrued since the appeal. These the Defendant must pay, and in addi- tion thereto he must under the decision in the case of the Commonwealth to the use of Lazarus vs. Shannon et al., 13, S. & R., 109, pay to the appelant all costs paid by him on the appeal; so that if an attorney fee is paid at the time of the appeal, the consequence is (that unless his counsel, who received the attorney fee on appeal, puts his hand in his pocket and pays it back to his client,) the appellee is obliged to pay two attorney fees into the Pro- thonotary's office-one for each counsel, when onlg one judgment has heen obtained against him. We are satisfied that the Legislature intended that the unscucessful party should only pay one attorney fee on any judgment, in any Court, and that upon entry of the final judgment in the Court in which such judgment was ob- tained. Plaintiff's counsel is, therefore, en- titled to the attorney fee of three dollars taxed upon this judgment. The three dollars taxed for attorney fee for services in the Supreme Court must be stricken out of the bill. After the writ of error had been taken, and before Mr. Smith had entered an appearance, (no appearance ever being en- tered in the Supreme Court,) the defendant paid to him the debt, interest and costs, and before the meeting of that Court, or the return day of the writ, he had marked the judgment in the Court below, on April 20, 1872, paid, satisfied and released, and signed his name as r I 0/AtI

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