Black's Appeal , 106 Pa. 344 ( 1884 )

Mr. Justice Sterrett

delivered the opinion of the court,

In the feigned issue to determine which of the two claimants was entitled to the fund in court, the verdict and judgment were in favor of the defendant, who thereupon filed his bill of costs amounting to $274.43. On application of plaintiff in the issue, the court ordered “ that one half of the costs, including witness fees on both sides, be paid by the plaintiff, and the other half by the defendant.” From that order the defendant appealed, and his contention is, that the costs being an incident of the judgment the court had no power to impose any part thereof on him.

No question is raised as to the validity of the judgment or regularity of 'the proceedings leading thereto. If there was, a writ of error would be the appropriate remedy. The only subject of complaint is the order made after rendition of the judgment, and that is clearly reviewable, on this appeal: Snyder v. Kunkleman, 2 Watts, 426. It was there held that after verdict and judgment in a feigned issue to determine a contested right to proceeds of sheriff’s sale, a decree of court, as to payment of costs of the issue, is the subject of revision on appeal, but not on a writ of error to the judgment. There is nothing, therefore, in the suggestion that appellant has mistaken his remedy.

At common law no costs were allowed, the amercement of the vanquished party being his only punishment; but, in assessing damages, costs were generally considered by the jury and included in their verdict. Costs, eo nomine, were first given to plaintiffs by the Statute of Gloucester, 6 Edw. I., c. 1. Afterwards, by the Statutes 23 Hen. VIII., c. 15, 4 Jac. I., c. 3, 8 and 9 Wm. III., c. 12, and 4 and 5 Anne, c. 16, the successful defendant was allowed the same costs as the plaintiff would have been entitled to, if he had recovered: 4 Minor’s Institutes, 788; 3 Blackstone, 399. With some statutory limitations and qualifications, which it is unnecessary to specially notice, the rule thus established in England has always been recognized and enforced here. In equity the practice is different, but in actions at law the general rule undoubtedly is that costs follow the judgment; and hence it is incumbent on an unsuccessful litigant, who claims either partial or entire relief from the costs of suit, to point to the statute that warrants exemption from the burden. The order complained of in this case appears to have been based on the special provisions of the Sheriff’s Interpleader Act, and decisions thereunder. That Act, it is true, declares “ the costs of all such proceedings shall be in the discretion of the court; ” but this clause refers solely to proceedings and issues under that Act, and has no application whatever to other feigned issues directed by the court for the purpose of determining disputed questions of fact according to the course of common law. When the issue in question was made up, it was like any other issue of fact presented by the pleadings in an action at law, and subject to the same rules of practice as to trial, judgment, and all the incidents thereof. The question was whether the money in court belonged to the plaintiff or to the defendant. The jury declared by their verdict that it belonged to the latter, and judgment was accordingly entered in liis favor on the verdict. Like ordinary judgments in actions at law, it carried costs, and the court erred in making an order, the effect of which was to prevent appellant from proceeding to collect full costs from the unsuccessful plaintiff in the issue.

The order of the court below is reversed and set aside, at the costs of the appellee, and it is ordered that the record be remitted for further proceedings according to law.