Opening of Parkway , 267 Pa. 219 ( 1920 )

Opinion by

Mr. Justice Moschzisker,

Claimant’s property on the Parkway, Philadelphia, was condemned by the city under the right of eminent domain; the' date of taking is conceded to be December 9, 1909, although jurors to assess damages were not designated until July 5, 1916. The board of view filed its report July 25, 1918, awarding, inter alia, $176,489 to plaintiff, with “compensation for delay in payment of the same at the rate of six per cent per annum from December 9, 1909.” This adjudication of damages, while put in dual form, is really a single award, and, when confirmed, September 13, 1918, it was to all intents and purposes a judgment, which bore interest from that date on the aggregate involved; but the mandamus execution, ordered March 31,1919, instead of combining the first mentioned amount with ascertained interest to date of confirmation, and commanding payment thereof, plus interest on the aggregate from that date to the day of payment, simply called for “$176,489 with interest from December 9, 1909.”

The mandamus issued April 1, 1919; it was taken to the city treasurer on April 3, 1919, and stamped “Presented for Payment”; but, so far as we understand, has not as yet been actually collected. May 20, 1919, claimant duly entered a rule to amend the writ so as to provide for “$176,489, with interest thereon at the rate of six per cent per annum from December 9, 1909, to September 13, 1918, and interest on the aggregate total from September 13, 1918, to date of payment, together with costs”; this rule was made absolute July 7, 1919, and the mandamus amended accordingly.

On July 15,1919, the city entered a rule to show cause why the amendatory words should not be stricken from the writ, alleging they “change, alter and reconstruct the award”; at the same time, it moved to, “vacate the confirmation of the viewers’ report, set aside the mandamus, and allow an appeal nunc pro tunc. This latter rule is supported by a petition, averring in addition to the facts hereinbefore stated, that, since the date of confirmation, the Supreme Court of Pennsylvania decided (Pa. Co. for Ins. on Lives, etc., v. Phila., 262 Pa. 439, 443,) a deduction of rent ought to be allowed against compensation for delay in all such cases; and that the award “in this particular case was for the full amount of the claim” without “any deduction” on account of “use and occupancy by the claimant since December 9, 1909.”

On January 22, 1920, the court below entered orders discharging both of defendant’s rules; whereupon the city took the three appeals now before us for consideration. The order amending the mandamus and the two orders just mentioned are assigned for error.

In support of the rulings attacked by the first and second assignments — the amendment of the mandamus and the refusal to reconsider that action — the court below correctly says it would have been better practice if the jury of view, after finding the value of the property (as of the date of the taking) and the compensation for delay, had mathematically calculated the latter, stating its award as a total; but, the opinion very properly adds, the method pursued does not change the real character of the award, and claimant occupies “the same position as if the case had been tried in the court of common pleas, in which event, the verdict being in favor of claimant for the amount of its claim, it would then be entitled to interest on the judgment from the date of the entry thereof to the date of payment”: see Township of North Whitehall v. Keller, 100 Pa. 105, 109; King v. Brown, 31 Pa. Superior Ct. 50, 51.

As to the remaining assignment, the court below states, inter alia: “The confirmation of the report of the board of view invested the award with the character of a final judgment......; we are not convinced that, at this time, we would be justified in setting aside this solemn judgment, where there is no allegation of fraud and the city has allowed the time for filing an appeal to expire” — all of which is obviously correct.

It is not necessary to discuss the merits of the case. Mandamus for the payment of an award is a writ of execution (Sedgeley Ave., 88 Pa. 509, 514; Township of North Whitehall v. Keller, 100 Pa. 105, 109; In re Kensington, etc., Turnpike Co., 97 Pa. 260, 270); and a determinative order relating to execution is in character a judgment, which, when of a final nature, is appeal-able : Sedgeley Ave., 88 Pa. 509, 511; Hibberd v. Delaware County, 1 Pa. Superior Ct. 204, 207. When an outstanding writ of execution is altered or interfered with in any final manner by the court from which it issued, if the immediate proceeding, leading to such action, is had on rule, or in other formal manner, with notice and opportunity to be heard given to the opponent (as in the present instance), the determination reached falls within the definition of a final judgment (Henry’s Est., 28 Pa. Superior Ct. 541, 543), and the party aggrieved need not move to set aside the order in question, but may appeal directly therefrom.

Of course, where execution is issued, or subsequently altered, without a rule or other formal proceeding affording defendant an opportunity to be heard, proper practice requires that he promptly move the court below to set aside the execution or revoke the order complained of (Bailey v. Wagoner, 17 S. & R. 327), before an appeal lies — this, in justice to the court of original jurisdiction and for the benefit of the appellate tribunal. Even in such case, however, if enough appears upon the record to decide the dispute involved, it is not always essential to move the court below in the premises before taking an appeal: Duncan v. Harris, 17 S. & R. 436.

Here the amendment of the writ of mandamus was had on rule duly taken, with notice to defendant, an exception being entered when the rule was made absolute; and the city’s subsequent motions raise no issne not de-. termined on claimant’s prior rule. If dissatisfied, defendant should have appealed from the order permitting the amendment; for, in a case like this, where the whole dispute concerning such amendment was presented to the court on claimant’s motion, if the date of the order discharging defendant’s rule — to strike out the amendatory words — is considered as prolonging the time for appeal, then the statutory period could always be extended by the simple expedient of entering a rule to set aside, just before the expiration of six months from the date of the original order; which practice, it stands to reason, cannot prevail.

Again, the confirmation of the viewer’s award of damages was a final judgment, subject to appeal (Sedgeley Ave., 88 Pa. 509, 514, 515; Township of North Whitehall v. Keller, 100 Pa. 105, 109; Marlin v. Indiana Boro., 61 Pa. Superior Ct. 519, 520), and, where no fraud, deception or clerical error is alleged, the quarter sessions cannot be held to have erred in refusing to disturb its judgment after the expiration of the term of entry (Kensington, etc., Turnpike Co., 97 Pa. 260, 272), particularly where the time for appeal also has expired.

To the extent that defendant’s several motions involve facts outside the record, they were addressed to the discretion of the court below (Rice, P. J., in Stephens v. Addis, 19 Pa. Superior Ct. 185, 186-7), and so far as they involve record facts, or issues of law based thereon, they were passed upon and duly adjudicated when final action was had on the report of the board of view by confirmation, and on claimant’s rule to amend by making it absolute; none of the matters thus determined will be inquired into again: Long v. Lebanon N. Bk., 211 Pa. 165, 167, 168.

When a judgment has been obtained against a municipality, it cannot in subsequent proceedings to collect the adjudicated debt, enter defense on the merits (Com. ex rel. v. Hinkson, 161 Pa. 266, 267); and this, in effect, is what defendant now desires to do, It attacks the amendment of the mandamus as though the court below had thereby “altered and reconstructed” the original judgment, whereas it did nothing more than properly mould the execution to conform to such judgment. Defendant’s whole case is avowedly an attempt to have the execution and judgment of confirmation set aside so that it may be afforded an opportunity to put in a defense on the merits, such as suggested by us in Pa. Cc. v. Phila., supra; which, we must assume, the city solicitor knew he had a right to present when the case was before the viewers. If defendant was denied such right at that time, it should have appealed, within the statutory period, from the judgment of confirmation; not having done this, it is now too late: Brown v. Independent School District, 1 Monaghan 111, and 16 Atlantic Reporter 32, 36.

Appellant’s contention that the endorsement of the mandamus by the city solicitor — “interest upon said writ is properly payable up to this date, April 3, 1919, to be computed from the 9th day of December, 1909”— makes it, “in addition to being a writ of execution,” also “a contract between the parties,” which cannot be changed in any manner without the “consent of the city,” does not impress us. Moreover, this point is not suggested by the statement of questions involved and the record fails to indicate it was raised in the court below; therefore, we shall not further consider it.

All three appeals are quashed.