Commonwealth Ex Rel. Brown v. Fidelity & Deposit Co.

Adkins, J., delivered the opinion of the- Court. James A. McCullough, Sarah J. McCullough, and Martha E. Taylor were tenants in common of certain real property in Philadelphia prior to May 11, 1911. John Wilson Brown, Jr., the appellant, was a judgment creditor of the said James A. McCullough, whose interest in said property was conveyed to one Samuel Dotlow. The property was subject to certain liens for taxes and other public charges levied by the City of Philadelphia, which were paid in full out of the proceeds of sale of Dotlow’s interest under an execution issued on Brown’s judgment, and thus the entire amount of these liens were paid by Brown, who filed a bill in the Court of Common Pleas Ho. 3 of the County of Philadelphia on May 13, 1911, claiming the right to be subrogated to the ³² city’s claims and liens to the extent of the amount that should have been contributed thereto by the said Sarah J. McCullough and Martha E. Taylor.

On July 3, 1914, the Philadelphia court entered a decree in personam against each of the defendants in favor of Brown for the sum of $1,006.37 and interest from May 13th, 1911, the date of the distribution by the sheriff of Philadelphia County of the fund realized by the sale of the one-third interest of Samuel Dotlow in said property; and also in rem against the respective interests of said defendants for $1,006.37 each, with interest as aforesaid. From this decree an appeal was taken to the Superior Court, and the appeal bonds filed on that appeal by each of the defendants were the subjects of the suit in the present case, appellee being the surety on each of said bonds. The condition of each was, “that if the said appellant shall prosecute the appeal with effect and shall pay the amount finally adjudged to be due upon such order, judgment or decree, including- interest and costs, and shall pay all costs and damages awarded by the Appellate Court, or legally chargeable against said appellant, and shall pay all damages for injuries suffered by appellees from the time of the decree entered and all mesne profits accruing after judgment, if any, then the above obligation to be void, or else to remain in full force and virtue.” This condition is not binding in so far as it exceeds the requirement of the Pennsylvania statute (Act of May 19th, 1897, P. L. 67), section 6 of which is as follows: “An appeal from an order, judgment or decree directing the payment of money shall operate as a supersedeas if the appellant give bond with sufficient surety or sureties in double the amount of said judgment, order or decree, and all costs accrued or likely to accrue, conditioned that the appeal be prosecuted with effect, and that the appellant will pay all costs and damages awarded by the Appellate Court or legally chargeable against him.” ³³ The'Superior Court reversed the Court of Common Pleas as to the decree in personam against the defendants, holding that it had no power to enter such a decree; confirmed the decree against the property, and required appellee to pay the costs of the appeal. Whereupon suit was brought in the Baltimore City Court by The Commonwealth of Pennsylvania for the use of John Wilson Brown, Jr., against The Fidelity and Deposit Company of Maryland, the surety on said bonds.

Several questions of