Writ of Certiorari The Supreme Court of Pennsylvania, (Seal) SS.: The Commonwealth of Pennsylvania. To the Judges of the Court of Common Pleas, No. for the County of Philadelphia, Greeting: We being willing for certain causes, to be certified of the matter of the appeal of .. from the judgment (order or decree) of the said Common Pleas Court, entered on the ... .day of .... .., 19...., in No. Term, 19...., wherein the said appellant, was plaintiff (or defendant) and ... was defendant (or plaintiff), before you, or some of you, depending, do command you, that the record and proceedings aforesaid, with all things touching the same, before the Justices of our Supreme Court of Pennsylvania, at a Supreme Court to be holden at in and for the Monday of District, the ... next so full and entire as in your Court before you they remain, you certify and send, together with this writ that we may further cause to be done thereupon that which of right and according to the laws of the said State ought. Witness the Honorable Chief Justice of our said Supreme Court, at of the ... day in the year one thousand nine hundred and Prothonotary. are surety in the within case, dollars. (Lower Court) Prothonotary. To the Honorable the Judges of the Supreme Court of the Commonwealth of Pennsylvania, sitting in and for the .... District: The record and process, and all things touching the same, so full and entire as before us they remain, we certify and send as within we are commanded. Bail and Supersedeas Bail upon any appeal shall be entered in the court from which the appeal is taken, shall be in the name of the commonwealth to the use of all parties interested, and shall be sued upon in like manner as official bonds. Except as herein otherwise provided, and subject to revision by the court from which the appeal is taken, the prothonotary or clerk thereof shall fix the amount of bail and approve or reject the security offered.142 Nor shall an appeal supersede an execution issued or distribution ordered, unless taken and perfected, and bal entered in the manner herein prescribed within three weeks from such entry.1 Filing Record 143 The prothonotary or clerk shall prepare and forward the record to the appellate court, duly certified by any judge of the court below, on or before the date mentioned in said writ, or in such rule or special order. 144 Testimony is Part of Record In any proceedings had in any court of record of this Commonwealth where the testimony shall be taken by witnesses, depositions, or otherwise, and where an appeal shall be taken from the order, sentence, decree, or judgment, entered in said proceedings, to the Superior or Supreme Court, such testimony shall be filed in said. proceedings, and the effect of said appeal shall be to remove, for the consideration of the appellate court, the testimony taken in the court from which the appeal is taken, and the same shall be reviewed by the appellate court as a part of the record, with like effect as upon an appeal from a judgment entered upon the verdict of a jury in an action at law, and the appeal so taken shall not 142 Act May 19, 1897, P. L. 67, § 5. The amount is double the amount of judgment and costs accrued and likely to accrue. Ibid., § 6. 143 Ibid. Appeal is perfected when the prescribed affidavit has been filed and bail has been entered as required by the act; Marks v. Baker, 2 Sup. 167 (1896). Where appeal is not perfected within six months by filing with prothonotary of lower court and notice of appeal has not been given as required by rules of court, appeal will be quashed; Mehaffy v. Fink, 13 Sup. 534 (1900). New bail entered after three weeks from judgment will not supersede execution already issued; McKeeby v. Webster, 170 Pa. 624 (1895); unless execution has been returned nulla bona; Com. v. Conway, 22 C. C. 428 (1899). 144 Act May 19, 1897, P. L. 67, § 2. In Philadelphia County the prothonotary or clerk attends to making up and return of record, filing the same at his convenience prior to return day. In other counties the practice varies; in some, the record is brought up and filed by the prothonotary or clerk as required by the act; in others by counsel on the first day of the term. In all cases where the record is not returned on the return day of the term at which the case is upon the list for argument, it shall be the duty of the prothonotary to enter a non pros., which shall not be taken off except by order of the court. Supreme Court Rule 15; Superior Court Rule 9. Writs may be issued out of the Supreme Court or Superior Court as heretofore, if the court below fails or neglects to certify or send the whole record in the cause, or when the record has been returned to the lower court and is needed for further proceedings in the appellate court. Act May 19, 1897, P. L. 67, § 18. have the effect only of a certiorari to review the regularity of the proceedings in the court below.145 Assignments of Error Counsel for the appellant shall, on or before the return day of the term at which the case is upon the list of argument, specify in writing the particular errors which he assigns, and file the same in the prothonotary's office; and, on failure so to do, the court may non pros. the writ.146 Paper Books and Argument See Supreme Court Rules 29 et seq., and Superior Court Rules 17 et seq., and Mr. Chief Justice Mitchell's address on "Hints Upon Practice in Appeals," 52 Am. Law Register 337. Powers of the Appellate Court The Supreme Court shall have power in all cases to affirm, reverse, amend or modify a judgment, order or decree appealed from, and to enter such judgment, order or decree in the case as the Supreme Court may deem proper and just, without returning the record for amendment or modification to the court below, and may order a verdict and judgment to be set aside and a new trial had.117 145 Act April 18, 1919, P. L. 72. 146 Supreme Court Rule 14; Superior Court Rule 8. Each error relied on must be specified particularly and by itself. If any specification embrace more than one point, or refer to more than one bill of exceptions, or raise more than one distinct question, it shall be considered a waiver of all the errors so alleged. Supreme Court Rule 26; Superior Court Rule 14. When the error assigned is to the charge of the court, or to answer to points, the part of the charge, or the points and answers referred to, must be quoted ipsissimis verbis in the specification, and the parts of the charge assigned as error shall be enclosed in brackets in the printed charge with the number of the assignment noted. When the error assigned is to the admission or rejection of evidence, or to the striking out or refusal to strike out evidence, the specification must quote the questions or offers, the ruling of the court thereon, and the evidence admitted or rejected, stricken out or which the court refuses to strike out, together with a reference to the page of the paper book or appendix where the matter may be found in its regular order in the printed evidence or notes of trial. When the error alleged is the admission or rejection of a writing, a full copy of the writing must be printed in the paper book. Any assignment of error not according to this and the rule immediately preceding will be disregarded. Supreme Court Rule 28; Superior Court Rule 16. Act May 20, 1891, P. L. 101, § 2. The Superior Court has similar powers under Act June 24, 1895, P. L. 212, § 8. The appellate court may allow amendments of writ of error to conform to the original record; Statute 5, Geo. 1. c. 13; Roberts' Digest 48; may quash the appeal for failure to appear at argument or to file assignment of error or for other delays and irregularities in the proceedings, either upon motion of counsel or by the court sua sponte; Monaghan, § 233; or may enter non pros. for such reasons. Supreme Court Rules 14, 15, 48; Superior Court Rules 8, 9, 39. Discontinuance may ordinarily be filed by appellant at any time before the return day of the writ but after the case has been argued and is sub judice, motion to discontinue will be refused if opposed by appellee. Saint v. Cornwall, 207 Pa. 270 (1903). As to the lien of judgments in the appellate court, see Act March 20, 1799, 3 Sm. L. 358, § 14, Act June 24, 1895, P. L.. 212, 83, Act April 22, 1909, P. L. 103, § I. 147 Remittitur At the expiration of ten days from the final decision of any cause by the Supreme Court, or Superior Court, the prothonotary thereof shall send back the record, with a remittitur 148 and a copy of the opinion, to the court from which it originally came, unless other steps be taken in the cause which shall require its detention. It shall not be necessary to return the record to the Superior Court in any case appealed therefrom, unless the Supreme Court shall so direct, but it shall be remitted to the court from which it originally came, in the same manner, and with like effect as if directly appealed to the Supreme Court therefrom.149 In all cases where, in pursuance of the judgment of this court a cause goes back to the court below for further proceedings, it shall be the duty of the prothonotary to certify and send back with the order, decree or judgment, a copy of the opinion of the court which shall have been filed.150 Arrest in Civil Cases It shall be the duty of the prothonotary of any court having jurisdiction of the action, on the application of the plaintiff in any personal action, his agent or attorney, instead of the writ of summons as aforesaid, to issue a writ of capias ad respondendum.151 148 The remittitur is the formal sending back of the record and proceedings to the lower court after judgment on appeal in order that appropriate proceedings may be taken in accordance with the decision of the appellate court. Thus, if the judgment of the lower court is affirmed, after remittitur is filed execution may issue; if the judgment is reversed, the appellate court may order a new trial (venire facias de novo) or enter such judgment as the lower court should have entered, or direct the lower court to enter such judgment, or direct the lower court to take further proceedings (procedendo). 149 Act May 19, 1897, P. L. 67, § 20. 150 Supreme Court Rule 17; Superior Court Rule 11. Costs on appeal shall consist of the amount paid the prothonotary of the court below and of the appellate court and an attorney fee of three dollars, to be paid by the party finally losing the cause. The words "finally losing the cause" refer to the state of the record of the court in which the case is tried which puts an end to the action. Where, on demurrer to a statement of claim and judgment for defendant, plaintiff appealed and the Supreme Court reversed the judgment, and after trial and verdict for plaintiff for less than his claim, he again appealed and this judgment was affirmed, and the prothonotary then taxed plaintiff's costs in the first appeal, including costs of paper book, but refused to tax any costs on the second appeal, it was held that this action was correct under the Acts of May 19, 1897, P. L. 67, 821; April 15, 1907, P. L. 83, § 1, and April 27, 1909, P. L. 263. Ruch v. City of York, 24 D. R. 974 (1915). Where the appeal is, in the opinion of the appellate court, sued out for delay, it may impose a penalty, as further costs, of an additional attorney fee of $25.00 and damages at the rate of 6 per cent. per annum. Act May 19, 1897, P. L. 67, § 21. Expense of printing paper books is also taxable as costs. Act April 27, 1909, P. L. 264, § I. 151 Act June 13, 1836, P. L. 568, § 3. The words "in any personal action" are restricted in effect by the provisions of the Act of July 12, 1842, P. L. 339, § 1. The earlier Pennsylvania practice was to commence all actions whether ex contractu or ex delicto by a writ of capias, on which defendant was arrested and held to bail for his appearance; Carroll v. Simons, II D. R. 47 (1902); and the purpose of the Act of 1842 was to abolish imprisonment in actions arising ex contractu excepting in the cases enumerated in the act, but actions on torts were left in the same situation as to remedies as under the Act of 1836. Sedgebeer v. Affidavit to Hold to Bail "In the absence of a rule of court, a capias may issue without first filing an affidavit of the cause of action. Formerly such an affidavit was required as a condition precedent to the issue of the capias by sections 4 and 5 of the Act of 1836, but these sections were, two years afterward, expressly repealed. The defendant, however, is entitled to summary relief by a rule on the plaintiff to show cause of action, and why he should not be discharged on common bail, and in this hearing the plaintiff must be prepared with a full affidavit of the facts of the case." 152 It is well, therefore, in all cases, whether required by rule of court, or not, to prepare the affidavit in limine. Most of the county court rules require the affidavit to be filed before the writ issues." 153 Form of Affidavit to Hold to Bail for Slander 154 (Caption.) A. B., being duly sworn according to law, deposes and says that he is now a resident of ... and has so resided there for last past. Deponent has always led an upright and honest life, and has never been guilty of the crime of . or of any crime whatever, nor has deponent ever been suspected of the same until the committing of the grievances hereinafter set forth. Deponent further says, that on or about the 1923, at this county of .... day of the defendant, spoke of and concerning deponent, and in the presence and hearing of a number of persons, the following false, scandalous, malicious and defamatory words, to wit: (quoting them); and also that on the ... day of Moore, Brightley's Nisi Prius Cases 197 (1850). When the name of defendant is unknown a capias may nevertheless issue in an action for tort committed by such person and he may be arrested "only under the direction of the plaintiff and at his risk" and the officer making the arrest may insert the name in the writ. Act June 13, 1836, P. L. 568, §§ 7, 8. When the action is commenced by summons but for a cause of action in which capias might have issued and plaintiff or his agent or attorney makes affidavit of cause of action and that defendant is about to quit the commonwealth, as deponent verily believes, without leaving sufficient real or personal estate therein to satisfy the demand, he may have a special capias. Proceedings on this writ are the same as on the capias. Ibid., §§ 24, 25. I Troubat & Haly's Practice (6th Ed.), p. 305; Sheehan v. Whittaker, 42 C. C. 113 (1914). 152 153 In Philadelphia all writs of capias ad respondendum must be specially allowed and bail fixed by one of the judges, and shall be founded upon an affidavit of the cause of action, filed with the praecipe for the writ. Rule 28. The affidavit is conclusive. Neither a supplemental affidavit of plaintiff, Eldridge v. Robinson, 4 S. & R. 548 (1818), nor a counter affidavit of defendant, Brown v. Esquirrel, 12 W. N. C. 421 (1883), will be allowed. 154 "It seems to us that the best kind of an affidavit to hold to bail is one containing a simple statement of the facts, mentioning the plaintiff and defendant by name, giving their addresses, if known, alleging the time and place where the breach of law occurred, setting forth briefly the act or acts which constitute the breach, and stating the legal inference to be drawn therefrom. If special damage is claimed, counsel should detail the same with sufficient particularity to enable the court to fix proper bail." Gottlieb v. Benjamin, 24 D. R. 196 (1915). |