Burns v. Smith

Citations

• 180 Pa. 606
• 37 A. 105
• 1897 Pa. LEXIS 973

Syllabus

<p>Arbitration — Striking off award — Regularity of proceedings.</p> <p>An award of arbitrators will not be stricken off where the statement in the case sets up a sufficient cause of action, and it is not made to appear that there was any irregularity in the proceeding or misconduct on the part of the arbitrators.</p> <p>Arbitration — Appeal from award — Payments of cost by check.</p> <p>While it has been rigidly held that actual payment is required of all taxed costs within twenty days as a condition precedent to a valid appeal from an award of arbitrators, and that payment by check, draft or note, or charge to the appellant’s attorney is not a payment within the meaning of the act, yet there was formerly much more reason for the rule that payment should not be made by cheek than there is now when the use of checks as a means of payment has become almost universal; and the striking off or refusing to allow an appeal will not be sustained for a mere technical default, but only for a substantial failure of payment.</p> <p>Four days after an award of arbitrators was filed, the defendant gave the prothonotary a check drawn on a bank near the prothonotary’s office for the costs as taxed, and on the same day took an appeal. The prothonotary knew that the check was good. His docket showed that “ defendant by check pays costs.” The prothonotary retained the check until after the expiration of twenty days from the filing of the award. The court struck off the appeal because the costs had not been paid within the time required by law. Held, that this was not fair dealing; it was not just, and the appeal must be reinstated.</p>