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COMMONWEALTH EX REL. WARNER v. WARNER (06/13/62)

June 13, 1962

COMMONWEALTH EX REL. WARNER
v.
WARNER, APPELLANT.



Appeals, Nos. 441 and 442, Oct. T., 1961, from orders of Court of Quarter Sessions of Delaware County. Sept. T., 1959, No. F-5-123, in case of Commonwealth ex rel. Isabel Durkee Warner v. Miles Warner. Orders affirmed.

COUNSEL

Harris J. Latta, Jr., for appellant.

J. Harold Hyghes, Assistant District Attorney, with him Ralph B. D'Iorio, First Assistant District Attorney, and Jacques H. Fox, District Attorney, for appellee.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Ervin

[ 198 Pa. Super. Page 125]

OPINION BY ERVIN, J.

The appeal filed to No. 441 October Term, 1961 raises the sole question of whether a defendant father in a support proceedings for three minor children is entitled to his appeal costs where the Superior Court reduced the amount of the order.

On Octber 7, 1960 the Court of Quarter Sessions of Delaware County ordered the appellant to pay $80.00 per week "together with all sums which may be paid or incurred by the relator for necessary medical care and attention" for the support of his three minor children. The appellant appealed to this Court and in Com. ex rel. Warner v. Warner, 194 Pa. Superior Ct. 496, 168 A.2d 755, the order was reduced to $65.00 per week and affirmed as reduced.

On March 23, 1961 the appellant filed a bill of costs in the sum of $687.31 on account of his appeal. The Commonwealth filed exceptions and the Clerk of the Court refused to tax the costs. On October 25, 1961 the lower court sustained the exceptions and affirmed

[ 198 Pa. Super. Page 126]

    the Clerk of Court's refusal to tax costs. The defendant appealed.

Two statutes control the question of costs in the present situation. The first of these is the Act of May 19, 1897, P.L. 67, 12 PS § 1160, which provides: "The costs in any appealed cause ... shall be paid by the party finally losing the cause...."

The other is the Act of April 15, 1907, P.L. 83, § 1, as amended by the Act of April 27, 1909, P.L. 263, § 1, 12 PS § 1193, providing: "In all cases ... wherein an appeal is taken from any judgment ... the party in whose favor the final decision is rendered shall be entitled to charge, and collect from the losing party as part of the costs, such amount as shall have been expended for printing paperbooks upon said appeal. The cost of printing the paperbook of each party shall be taxed as costs, collectible by the attorney fo record of such party in such appeal."

The question now to be decided is whether this Courths decision at 194 Pa. Superior Ct. 496 resulted in a "party finally losing the cause" under the Act of 1897, as amended, and in the rendering of a "final decision" in favor of the appellant under the Act of 1907, as amended.

The reasoning of the court below is that there has been no "final decision" in the appellate court in favor of the appellant, because "the date of the record" ...


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