Opinion
March 7, 1939.
March 16, 1939.
Equity — Costs — Direction as to payment — Appellate courts — Power — Supreme Court — Modification or enlargement of judgment as to costs.
1. In suits in equity, the appellate court has the power and authority to direct who shall pay the costs.
2. Where a judgment is rendered by the Supreme Court as to payment of costs, the matter of change, modification or enlargement of the judgment as to payment of costs because of special circumstances in the case is one wholly for the consideration of and disposition by the Supreme Court, and no other court should presume to act for it in the exercise of such discretion.
3. Where, on appeal from a decree in an equity proceeding, the Supreme Court entered a judgment reversing the decree of the court below and directing the appellee (plaintiff) to pay the costs; and, thereafter, the appellants (defendants) moved to suggest in the court below that certain parties should be named as equitable plaintiffs for whose use or benefit and at whose instance and request the action had been brought and prosecuted, so that judgment for the taxed costs might be entered against them following the judgment of the Supreme Court, and this motion was dismissed by the court below; on appeal by defendants to the Superior Court, the appeal was certified to the Supreme Court, should that court be willing to consider the application.
Appeal, No. 28, Feb. T., 1939, from decree of C.P. Susquehanna Co., Nov. T., 1934, No. 165, in case of Blue Ridge Metal Manufacturing Company v. Jessie F. Proctor et al.
Before KELLER, P.J., CUNNINGHAM, BALDRIGE, STADTFELD, PARKER and RHODES, JJ. Appeal certified to Supreme Court.
Suggestion filed and rule obtained by defendants to show cause why parties should not be joined as equitable plaintiffs so that judgment for taxed costs might be entered against them following the order of the Supreme Court.
The facts are stated in the opinion of the Superior Court.
Decree entered dismissing motion to suggest equitable plaintiffs and discharging rule thereon, opinion by SWOYER, P.J., specially presiding. Defendants appealed.
Error assigned was decree.
Howard V. Fisher, with him Harold J. Ryan and Sue M. Strous, for appellants.
Reese H. Harris, of O'Malley, Hill, Harris Harris, with him Thomas A. Doherty, for appellees.
Argued March 7, 1939.
This appeal grows out of a judgment of the Supreme Court on a suit in equity between the parties, reversing the decree of the Court of Common Pleas of Susquehanna County, sitting in equity, as follows: "The assignments of error are sustained, the decree of the court below is reversed, and it is ordered that the bill be dismissed. Appellee [plaintiff] to pay the costs."
Thereafter the appellants, [defendants], filed a suggestion in the court below that First National Bank of Susquehanna, Scranton Lackawanna Trust Company, as Trustee of Frank Zeller, deceased, Sidney H. Hersch and William A. Skinner should be joined as equitable plaintiffs for whose use or benefit and at whose instance and request the said action had been brought and prosecuted, so that judgment for the taxed costs might be entered against them following the judgment of the Supreme Court; on which a rule to show cause was granted, returnable February 24, 1938.
On the return day counsel for plaintiff moved to dismiss said suggestion and rule, for the reason, inter alia, that "Costs in this proceeding were imposed upon the Blue Ridge Metal Manufacturing Company by a decree and judgment of the Supreme Court and that judgment cannot be opened or amended by the court of common pleas or the court sitting as a chancellor for any purpose"; and on that ground the court below on March 29, 1938 ordered and decreed that the defendants' motion to suggest equitable plaintiffs be dismissed and the rule thereon discharged. The defendants appealed to this Court.
The original suit was one in equity. In such cases, differing from actions at law, the appellate court has the power and authority to direct who shall pay the costs. It ordered the appellee, Blue Ridge Metal Manufacturing Company, to pay them.
If defendants felt that there were special circumstances in the case which warranted a change, modification or enlargement of the judgment as to payment of costs, they should have applied to the Supreme Court, which having full knowledge of the facts on which its judgment was based and full power to dispose of the costs, could make such order or modification, if any, as it deemed equitable and just. But no other court should presume to act for it in the exercise of such discretion. See Ladner v. Siegel, 296 Pa. 579, 146 A. 710; Crawford's Estate, 108 Pa. Super. 475, 477, 165 A. 540; Crawford's Estate, 313 Pa. 127, 129, 169 A. 438.
Appellants adopted the wrong course in filing the suggestion in the lower court, but as the Supreme Court may be willing to consider it as such an application, if the appeal is certified to that court, we are of the opinion it should be so certified. The matter is one wholly for the consideration of and disposition by the Supreme Court.
Appeal certified to the Supreme Court.