Johnson v. Hessel

Citations

• 134 Pa. 315
• 19 A. 700
• 1890 Pa. LEXIS 705

Syllabus

<p>[To be reported.]</p> <p>(«) A writ of habere facias possessionem having been issued upon a judgment in ejectment, the sheriff returned that he found a third party in possession claiming by title paramount to the defendant, setting forth the nature of his claim. The court ordered the sheriff to proceed to execute the writ; whereupon the claimant took a writ of error to the Supreme Court.</p> <p>(b) The recognizance given in connection therewith was conditioned that the “ plaintiff in error prosecute his writ with effect; and, if the judgroent be affirmed, or the writ of error be discontinued or non-prossed, that he pay the debt, damages and costs adjudged or accrued upon such judgment, and -all other damages or costs that may be awarded upon such writ of error,” etc.:</p> <p>1. The recognizance, on the affirmance of the order by the Supreme Court, did not bind the obligors to pay to the plaintiff in the ejectment, as “ damages,” the rental value of the premises during the pendency of the writ of error; such damages, not being included in the judgment, nor awarded upon the writ of error, were within neither the letter nor the spirit of the condition stated in the recognizance.</p> <p>2. Moreover, the statute 16 & 17 Car. II. c. 8, is not in force in this state; and the remedy of the plaintiff in a judgment in ejectment for the recovery of mesne profits of land, retained in possession pending a writ of error to the judgment, or to an award of execution thereon, is that prescribed by act of June 11, 1879, P. L. 125: Warren v. Steer, 118 Pa. 529.</p>