Adamstown Borough v. Hartman (No. 2). wide common alley; thence by the said common alley, south seventyone and one-half degrees west, twenty feet, to a corner; thence along the west side of said twenty-foot-wide common alley, south eighteen and one-half degrees east, two hundred and fifteen feet, to a point on Meadow Street, a corner of land of said Jefferson H. Lied; thence by land of said Jefferson H. Lied, north forty-five degrees west, three hundred and eleven feet, to the corner of the fence of said Jefferson H. Lied on West Main Street; thence along the south side of said West Main Street, in said straight line, north sixty-two degrees east, one hundred and sixty-six feet, more or less, to the place of beginning." It was also provided therein that "the present conveyance is made subject that no house shall be built nearer to said straight line along the south side of West Main Street than ten feet, and also the grantee herein, his heirs and assigns, shall put down and keep in repair a brick pavement in front of said lot at the grade of the street." On April 2, 1917, Jefferson H. Lied conveyed a part of the above-described premises to the defendant. The property is described in said conveyance as being on Main Street. The defendant was street commissioner for fifteen years, and, as such, under the direction of the civil engineer of the borough, placed the stakes on both sides of the street as near as he could to where the straight line was. On June 14, 1915, the width of the pavement on the south side of West Main Street, in front of what is now defendant's property, was established by ordinance of the borough councils as fourteen feet from the building line. The defendant was notified in writing, on September 26, 1918, to lay his pavement according to the same, or the borough would, on October 4, 1918, begin to "reconstruct said sidewalk." He refused and neglected to do so, and thereupon the borough laid the sidewalk and filed this lien. The contention of the defendant's counsel is, that the defendant's property did not face upon the street, and he was, for this reason, not bound to lay a sidewalk; and embraced in this proposition is the claim that the borough could not widen its street by accepting the land embraced in the deed, but that proceedings under Chapter VI, Article VI, of the Borough Act of May 14, 1915, were the only legal method which it could pursue. The heading of this chapter is: "Roads partly within the borough," and the first section provides that, "in opening, widening and straightening roads partly within a borough, like proceedings shall be had as for the laying-out and opening of public roads." Section 7 enacts that, "before any change is made in any such road, a petition setting forth the facts, accompanied by a map, shall be presented to the Court of Quarter Sessions, and, if approved by the Court, the new location shall be taken to be the public road and the old location shall be deemed vacated." The fallacy, however, of the whole argument lies in the admitted fact that the road which was widened at this place lies wholly within the borough. It was not in any sense a road partly within a borough. By Article IV, Chapter VI of the same Act it is provided that " boroughs may survey, lay out, open, widen, straighten, extend or vacate streets, lanes, alleys and Adamstown Borough v. Hartman (No. 2). courts, or parts thereof, without petition of property owners," and the methods to be adopted are therein fully set forth. The jurisdiction to lay out streets in a borough, under the Acts of April 3, 1851, P. L. 320, and April 22, 1856, P. L. 525, was in the borough authorities; but the jurisdiction to lay out a road partly in the borough and partly outside. was in the Quarter Sessions. Somerset and Stoystown Road, 74 Pa. 61; St. David's Church v. Sayen, 244 Pa. 300. This rule has not been changed by the subsequent enactments. In Tabor Street No. 1, 26 Sup. 167, it was held that, “where an owner of land sells lots on instalments, reserving title to himself until the last instalment is paid, and, after such instalments are paid, but before deeds are executed to the purchasers, he executes an absolute deed of dedication to the public of a street on which the lots abut, and indemnifies the city against all damages caused by the grading of the street, and the deed of dedication is accepted by the city and duly recorded, the deed and the release are binding upon the purchasers from the owner, whose deeds are executed and recorded after the recording of the deed of dedication"; that "whatever puts a party upon inquiry amounts in judgment of law to notice, provided the inquiry becomes a duty, as in the case of purchasers and creditors." Here the defendant was not only bound by the law, but also by the covenant in his chain of title, to lay the pavement, he being an abutter on the public street. To my mind, no good reason has been advanced why he should not have done so. As he failed in this duty, he is bound to pay the costs incurred by the borough in his behalf. I am, therefore, of the opinion that the rule for judgment non obstante veredicto should be discharged. Rule discharged. Court of Common Pleas of Lancaster County Adamstown Borough v. Hartman (No. 3). Appeal-Supersedeas-Act of May 19, 1897, P. L. 67. An appeal to the Superior Court taken more than three weeks after the entry of judgment on a verdict is not a supersedeas, and a writ of execution issued on the same day as the appeal will not be stayed. Rule to stay writ of levari facias. May Term, 1919, No. 32. B. F. Davis, for rule. Wm. J. Eberly, John E. Malone and John A. Coyle, contra. September 25, 1920. Opinion by LANDIS, P. J. The above case was duly tried before a jury, and on November 25, 1919, a verdict was rendered under the instruction of the court in favor of the plaintiff for the sum of $101.18. A rule was afterwards taken for judgment for defendant non obstante veredicto, and, after argument before the court in banc, it was, on January 17, 1920, discharged. On February 16, 1920, the jury fee was paid and judgment was en Adamstown Borough v. Hartman (No. 3). tered on the verdict, and on March 9, 1920, a rule was taken for the taxation of the costs. On March 13, 1920, the costs were duly taxed. On March 19, 1920, a writ of levari facias was issued on the judgment, and on the same day an appeal to the Superior Court was filed. The record does not show the hour of the filing of the appeal, but the petition to stay the writ asserts that it was during the morning. The writ of levari facias issued at four p. m. The sole suestion to be determined is, whether or not the appeal was a supersedeas. The same question came before this court in Schock et al. v. Solar Gas Light Co. (No. 2), 24 LANC. LAW REVIEW 371. We there held that the appeal was not a supersedeas. In discussing the question, it was said: "Section 4, of the Act of May 19, 1897, P. L. 67, provides that no appeal shall be allowed in any case unless taken within six calendar months from the entry of the sentence, order, judgment or decree appealed from; nor shall an appeal supersede an execution issued or distribution ordered, unless taken and perfected, and bail entered in the manner herein prescribed, within three weeks from such entry.' That the appeal was not taken within three weeks of the entry of the judgment is conceded; but it is claimed that, as it was entered before the application for the writ of habere facias possessionem, it nevertheless acts as a supersedeas, and that no such writ can now issue. This contention seems to us to be unsustainable. In Commonwealth v. Hill, 185 Pa. 385, it was decided that the limitation in the Act of Assembly included criminal as well as civil cases, and that, although appeals in criminal cases are allowed as of right, .. upon the oath of the prisoner that they are not for the purposes of delay, yet they do not supersede execution issued, unless taken out within three weeks from sentence, as provided by the Act of 1897. Therefore, it was determined that, when a prisoner was sentenced to death on July 31, 1897, and the Governor issued a mandate fixing December 8, 1897, as the day of execution, an appeal entered on the morning of December 8, 1897, did not act as a supersedeas. In Geiselman v. Shomo, 13 Sup. 1, it was held that, 'where an appeal is taken after the date when such an appeal operates as a supersedeas, and the plaintiff treats the appeal as a nullity and proceeds with his execution to a sale of the defendant's real estate, just as though no appeal had been taken, and the defendant upon the appeal being non-prossed pays the costs, . . plaintiff may not recover on the bond any deficiency of his judgment not realized on the execution.' In this case, it is true, the execution issued before the appeal was taken." Orlady, J., in delivering the opinion of the court in Geiselman v. Shomo, supra, said: "Though, upon appeal, the record of the proceedings is removed for the purpose of reviewing and correcting of errors, there remains a valid judgment in the Common Pleas until reversed, for the purpose of lien and execution." In McKeeby v. Webster, 170 Pa. 624, it was held that, where exceptions have been filed to bail entered on an appeal to the Supreme Court, and the appellant has failed, after ten days' notice of the exceptions, to justify or enter new bail, as required by Rule 5 of the Supreme Court, he cannot claim a stay of execution, although he has subsequently entered proper bail." Adamstown Borough v. Hartman (No. 3). In Hoon v. Miller, 16 Dist. Rep. 703, it was decided that "an appeal to the Supreme or Superior Court will not supersede a fieri facias unless perfected by entering bail and filing the certiorari in the court below within three weeks from the entry of the judgment, as required by the Act of May 19, 1897, P. L. 67." It is true that, in the case of Commonwealth v. Conway and Wertz, 8 Dist. Rep. 319, a different view seems to be presented; but a careful examination of the case will show that it is not in point. The rule to show cause is now discharged. Rule discharged. C. P. AND Q. S. OPINIONS. Saturday, September 25, 1920. By JUDGE LANDIS: The City of Lancaster v. American Bonding Co. Motion for judgment of non pros refused. Joseph T. King v. C. V. Adams. Rule for judgment for want of a sufficient affidavit of defense discharged. Adamstown Borough v. Nathan F. Hartman.. Rule to stay writ of levari facias discharged. Harry V. Pearce v. Uriah Steffy. Rule to stay execution and open judgment made absolute. John A. Rockey v. Harry Barr. Rule for judgment for want of a sufficient affidavit of defense discharged. Ben. Felsenthal & Co., Inc., v. S. Kurtz Zook Rule for judgment for want of a sufficient affidavit of defense made absolute and judgment for plaintiff for $364.03. In re Road in Upper Leacock Township. Exceptions to report of viewers dismissed. By JUDGE HASSLER: The Excello Manufacturing Co. v. Fred W. Ritchy. Rule for judgment for defendant discharged. Octoraro Water Company v. F. Lynwood Garrison et al. Exceptions to findings of facts, etc. Exceptions dismissed. Otto Miedl v. Lena Miedl. Rule for judgment on point of law raised in affidavit refused and defendant directed to file affidavit of defense. In re Jenkel Jacob Stotsky. Rule to cancel certificate of naturalization discharged. Atlantic Motor Truck Co. v. Charles Kachel. Rule to amend plaintiff's statement made absolute and amendment allowed. Charles Sentman v. George Sentman. Rule to show cause why appeal should not be stricken off made absolute and appeal stricken off. J. Leibowitz v. Cornelius Keim. Certiorari. Exceptions dismissed and proceedings affirmed. H. H. Moore v. Morris Wilson. Rule for judgment for want of a sufficient affidavit of defense made absolute and judgment entered for plaintiff. Court of Common Pleas of Lancaster County Wilson et al. v. Zimmerman (No. 1). Agreement Assignment of-Liability of party. The defendant having agreed to purchase the stock of the plaintiffs in a hydroelectric company, the company's power plant was burned and the parties thereupon signed a supplemental agreement, by which the purchase price was reduced and the defendant agreed for himself and his assigns that the insurance money, if any, when collected by the company, should be paid to the plaintiff. On suit for the insurance money received by the company, the statement inferred that the defendant had transferred his contract to the company, and the defendant raised by affidavit the point of law that the contracts did not make him individually liable, Held that, as to this defense, the defendant was bound to pay or see that the company did so, but he could file a supplemental affidavit of defense. Question of law raised by affidavit of defense. August Term, 1918, No. 126. Chas. W. Eaby and Pritchard, Saul, Bayard & Evans, for plaintiffs. April 17, 1920. Opinion by Landis, P. J. The plaintiffs' statement sets forth that, on November 28, 1917, articles of agreement were entered into between the plaintiffs and the defendant, whereby the defendant agreed to purchase from the plaintiffs all of the outstanding shares of stock of the Lancaster Electric Light, Heat and Power Company, and certain real estate, specifically mentioned and described in said agreement. After all arrangements had been made between the parties, but before the agreement was signed, what was known as the Wabank plant, which was included therein, was destroyed by fire. Because of the said fire, a supplemental agreement. was prepared and signed between the same parties. This supplemental agreement recited that, "Whereas, by reason of fire to the Wabank plant occurring on the morning of the 28th of November, 1917, Wilsons agree to make an allowance to Zimmerman as set forth in this agreement. Therefore, it is mutually agreed by and between the parties hereto as follows: 1. The purchase price as set forth in the agreement dated the 28th day of November, 1917, shall be reduced by the amount of twenty thousand dollars ($20,000) par value of bonds of the Second Liberty Loan of the United States of America. 2. Zimmerman agrees that the amount of insurance paid to the Lancaster Electric Light, Heat and Power Company for the loss on the Wabank plant by reason of said fire shall be paid to Wilsons immediately upon the same being collected by the Lancaster Electric Light, Heat and Power Company. 3. This agreement shall bind the parties hereto, their heirs, executors, administrators and assigns." While not specifically averred in the statement, it can be fairly inferred from the same and the agreement that Zimmerman subsequently transferred or assigned his contract VOL. XXXVII, No. 51 |