#### Schmitt *v.*City of Philadelphia, Appellant.

*Practice, Supreme Court*— Error *not excepted to or*assigned— *Radical error*— Erroneous *order*— Appeal—Condemnation *proceedings*— Collateral *proceeding for costs.*

1. Ordinarily the Supreme Court will not consider an error which is not made the subject of exception or assignment, hut where there is a radical error patent on the face of the record, especially when the lower court has made a final order which cannot be executed and which in itself is erroneous, such error may he corrected on appeal in the absence of exception or. assignment.

2. Where, pending an appeal from an award of viewers in condemnation proceedings, the ordinance appropriating the land in question and directing its condemnation is repealed, the court has no power in a collateral proceeding to determine what costs a land owner may recover, and in such proceeding a decree directing payment of such costs is so fatally erroneous that on an appeal therefrom the Supreme Court will correct such error, even where it is not made the subject of an assignment.

Argued Jan. 13,1915.

Appeal, No. 265, Jan. T., 1914, by defendant, from judgment of C. P. No. 5, Philadelphia Co., Dec. T., 1911, No. 7045, dismissing exceptions to master’s report in case of Harry Schmitt v. City of Philadelphia.

Before Brown, C. J., Mestrezat, Stewart, Moschzisker and Frazer, JJ.

Reversed.

Petition for appointment of master to determine costs in condemnation proceeding. Before Staake, J.

The opinion of the Supreme Court states t-he facts.

The court dismissed the defendant’s exceptions to the master’s report. Defendant appealed.

*Error assigned*was in dismissing the exceptions.

*125February 8, 1915:

*Edwin O. Lewis,*Assistant City Solicitor, with him *Michael J. Geraghty,*Assistant City Solicitor, and *Michael J. Ryan,*City Solicitor, for appellant.

*Frederick F. Windle,*with him. *Evan B. Lewis,*for appellee.

Opinion by

Mr. Justice Stewart,

This record discloses error, which, though not made the subject of exception or assignment, is too serious to be overlooked. “We do not indeed,” observes Strong, J., in Bean’s Road, 35 Pa. 280, “often notice exceptions not taken in the court below, but where there is a radical error patent on the face of the record, especially when the court has made a final order which cannot be executed, an order which in itself is erroneous, we will correct the mistake.” This expresses the situation here as we shall try to show.

The City of Philadelphia, in August, 1911, began proceedings looking to the condemnation and appropriation for park purposes of a tract of land belonging to Harry Schmitt, this appellee, containing between' four and five acres. At the city’s instance viewers were appointed to assess the damages. By their report, made 2d February, 1912, they awarded to Schmitt the sum of $24,263.00. From this award both parties appealed, and their appeals are still pending unadjudicated. Subsequent to the taking of these appeals the City of Philadelphia by ordinance repealed the earlier ordinance appropriating the land and directing its condemnation. Thereupon, 14th March, 1914, Schmitt presented his petition to court reciting the fact of the repeal of the appropriating ordinance by the city, and praying that a rule issue to show cause why an order of reference to a master should not be entered to determine and report plaintiff’s reasonable cost, expenses and counsel fees incurred by reason of the premises. To this rule the city, made no answer, and accordingly the rule was made *126absolute, and an order followed appointing a master for the purpose, viz, “to determine and report this court the plaintiff’s reasonable cost, expenses and counsel’s fees incurred in his proceedings before the road jury or board of viewers,, and on appeal, for which the City of Philadelphia is liable.” After due hearing in which the only claim presented was for counsel’s fee, the master filed his report finding that $1,650.00 was a reasonable Allowance for counsel’s compensation, and that the city was liable for the same. Numerous exceptions were filed to the master’s report which were overruled; then followed the decree from which this appeal is taken by which it is ordered, adjudged and decreed. “that the City of Philadelphia pay to Harry Schmitt, the plaintiff in the above entitled cause the sum of $1,650.00 counsel’s fees for professional services rendered to the plaintiff by E. S. Ward, Esq., in the matter of the appropriation of a certain tract of ground ......said appropriation being subsequently abandoned by said city.”

Whether the city in any event is liable to the plaintiff for money expended by him for services for counsel, is a matter aside from our present inquiry, and as to which we make no expression of opinion. When that question comes properly before us we will meet it. What here concerns us is to inquire by what authority the court below took cognizance of the plaintiff’s petition, and attempted an adjudication of the question raised by such a proceeding as was here instituted. It is to be observed that it was a proceeding collateral to a pending proceeding in which, if pursued to a conclusion, this and all other questions of damages and costs would have been regularly and properly adjudicated. The significant fact is that the original action is still pending and undisposed of to this day, so far as the record shows,, while we have here a final adjudication by the court, by way of anticipation, of an element in the plaintiff’s claim which by every rule of practice can be determined *127only as final judgment is reached. Costs are incident to judgment, and here there is no judgment. We are pointed to no precedent for such a practice, and we know of none. Furthermore, we know of no law which invests a court with any such authority as was here attempted to be exercised. The argument in support of the proceeding shows a clear misapprehension of the cases which are cited as sustaining it. These are, Moravian Seminary v. Bethlehem Borough, 153 Pa. 583; Huckestein v. Allegheny, 165 Pa. 367, and Sensenig v. Lancaster County, 30 Superior Ct. 224. In the first of these the distinguishing feature will appear from the following recital of facts; a verdict had there been reached upon which a judgment, which because it had been prematurely entered was a nullity; a motion for a new trial was pending at the time judgment was entered; following this motion came a rule, issued on the application of the defendant, to show cause why a discontinuance should not be allowed; to this rule plaintiff made answer that under the circumstances the court was powerless, judgment having been entered, to authorize the discontinuance, and further, that heavy expenses had been incurred by plaintiff which should be paid by defendant before he should be permitted to.discontinue. The matter was referred to a master who reported that the taxable costs were $745.00, and that plaintiff had incurred other necessary expenses, viz, surveyor’s fees, printing bills, and counsel fees, amounting to $2,242.75, but, that because in the master’s opinion, these latter created no legal liability on part of defendant, he recommended a discontinuance upon payment by the defendant of the $745.00 taxable costs. The master’s report was approved and discontinuance was allowed. On appeal this court reversed the decree authorizing a discontinuance, and directed that discontinuance be allowed only on certain conditions, inter alia, that defendant pay not only the taxable cost found by the master, but the additional sum found by him as neces*128sary expenses incurred. The distinguishing feature here is, that in the case referred to the proceeding was based on a motion to discontinue an action pending, a motion properly addressed to the court, and over which the court had jurisdiction. Such a motion always brings into play the equitable power of the court; it may grant or refuse the motion, or, if granted, it may be on such terms and conditions as to the court seem just and equitable as between the parties. The party on whom the terms are imposed is not required to accept them; he may decline, in which case the action proceeds, and, as in the case of Sensenig v. Lancaster ■County, supra, the defendant, if a municipality, may show on the trial a repeal of the ordinance making the appropriation, thus reducing the plaintiff’s claim to a mere matter of costs. Whether in such case there can be a recovery of counsel fees is not a question falling within the present inquiry. A like distinction is to be observed in the case of Huckestein v. Allegheny, supra. There the city by its condemnation proceeding had attempted to do what this court afterwards declared was an impossible thing. Notwithstanding, plaintiff recovered a verdict in a large sum. From the judgment entered the city appealed. The judgment was reversed, and the court below was directed to “fix an allowance for counsel fees for the plaintiff, and tax the costs,” no venire to be awarded in case of payment, otherwise a venire to issue. Here again the exercise of equitable power fixing conditions of a venire which appellant might accept or reject according to his own pleasure. It was not a judgment assessing the plaintiff with costs of any kind. Not one of these cases is authority for the position taken here by appellee, that while an action for damages is pending, the court may in a collateral proceeding determine Avhat costs a plaintiff may recover. They all recognize the right of the court to attach conditions where it extends equitable relief, even to the payment of counsel fees where equity demands it; but they *129go no further. Except as the city here had moved for a discontinuance of the proceeding, there was nothing in the case warranting the action taken. It results that the decree entered must he reversed and the particular proceeding on which the decree is based set aside and vacated. It is accordingly so ordered.