Commonwealth ex rel. Bigley v. Ewing

Citations

• 176 Pa. 491
• 35 A. 215
• 1896 Pa. LEXIS 1103

Syllabus

<p>Appeals — Practice, C. P. — Security—Supersedeas—Equity—Controversy over real estate — Discretion of court — Act of March 17, 1845.</p> <p>Where in an equity proceeding it appears from the pleadings, proofs and decree that the controversy is about the possession of real propert}-, and the effect of the decree is to oust the defendants from what the court finds to be a defiant and wrongful possession of the realty, and to cause a redelivery of such possession to plaintiffs, the court may in the exercise of its proper discretion require the defendants to enter security as provided by the act of March 17, 1845, as a condition of staying the execution of the decree pending the defendants’ appeal to the Supreme Court.</p> <p>The plaintiffs in a bill in equity prayed that the defendants in the bill should be restrained from maintaining a flatboat of large dimensions at the river front of their lot, and from otherwise obstructing the water front. The defendants in the bill denied the riparian right of plaintiffs. The court of common pleas found that the plaintiffs had the exclusive right to the river front, and that the defendants had excluded them from the enjoymeut of this right. Defendants appealed, but the court required that before defendants’ appeal should operate as a supersedeas, they should enter security for $2,000 conditioned for payment of damages as well as costs. The defendants who are the relators in this proceeding presented a petition to the Supreme Court praying for a mandamus to the courts below to direct the approval of a bond for costs only. The court below in answer to an alternative mandamus stated as a reason for enlarging the penalty in the bond that defendants persisted in continuing the nuisance. Held, (1) that the case involved a controversy over real estate, and came under the fourth condition of the act of March 17,1845; (2) that the court properly exercised its discretion in requiring a bond for damages as well as costs; (8) that if the co