Smith v. Sharp
Supreme Court of Pennsylvania
ERROR to Tioga county. Sharp, the defendant in error, obtained a judgment in the common pleas against Smith; upon which Smith took a writ of error and reversed the judgment, and no venire de novo was awarded ; whereupon he returned the record and issued a fieri facias against the plaintiff to recover his costs; which the court below set aside. cited 1 Penns. Prac. 229; Russell v. Gray, 6 Serg. & Rawle 208. cited 1 Chit.
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ERROR to Tioga county. Sharp, the defendant in error, obtained a judgment in the common pleas against Smith; upon which Smith took a writ of error and reversed the judgment, and no venire de novo was awarded ; whereupon he returned the record and issued a fieri facias against the plaintiff to recover his costs; which the court below set aside. cited 1 Penns. Prac. 229; Russell v. Gray, 6 Serg. & Rawle 208. cited 1 Chit. Pl. 194; Swearengen v. Pendleton, 4 Serg. & Rawle 386 ; Wright v. Small, 5 Binn. 204.
1Opinion of the Court
•Per Curiam.
Arrest of judgment has not the effect of giving the defendant costs; and it would be curious if he might entitle himself by procuring an equivalent for it in the court above. Such a con*293sequence would be an irresistible temptation to useless litigation and expense. On a simple reversal there is no award of execution except for purposes of restitution. The parties are left where they began, the case not being provided for by the statute of Gloucester, or any other which gives costs.
Affirmed.
2Cited by4 opinions
- Fries v. Pennsylvania RailroadSupreme Court of Pennsylvania · 1881
- Ellis v. Agricultural InsuranceSuperior Court of Pennsylvania · 1899
- Bailey v. Mississippi Home Telephone Co.District Court, M.D. Pennsylvania · 1918
- Moser v. Philadelphia, Harrisburg & Pittsburg RailroadSuperior Court of Pennsylvania · 1913