The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1895-10-15
DID NOT PAY The costs
For That Reason Court Is Asked to
Strike Off Mr.. Smiths Appeal.
1T WILL BE ARGUED LATER
In Consideration OF 81 ana Natural Love
and Affection MIR. Smith iias Sold
His Real Estate Valued at
$4,000 TO His Wife.

An application was made to the court
yesterday to strike off the appeal taken
by Attorney Cornelius Smith from the
award of the arbitrators in the libel
suit Instituted against him and John
G. Jennings by Attorney |. II. Burns.
The suit was the outgrowth of charges
made against Mr.. Burns and others by
Mr.. Smith in paper book filed with the
Supreme court in the application for a
mandamus against the Lackawanna
county court to compel it to discharge
John G. Jennings on common bail.
On July 27, Mr.. Burns began pro-
ceedings against Attorney Smith and
Mr.. Jennings to recover $50 900 damages
for the alleged libelous charges made
and the case was heard before arbitrat-
Ors, no defense being offered. On Sept.
19 the award of arbitrators was filed
allowing Mr.. Burns $4,000 damages.
From this award on Sept. % Mr. Smith
took an appeal, paying the costs.
amounting to s47.13. with his personal
check to Prothonotary Pryor. at the
same time directing the latter to hold
the check until the costs. which Mr..
Smith said were excessive, We're re-
taxed. He subsequently filed writ
ten protest against the amount of the
costs, and pending the settlement of
the matter the check was not converted
into cash by Mr.. Smiths request.
The twenty days allowed by law for
taking an appeal expired Oct. and as
Mr.. Smith had not paid the costs it is
held his appeal Is Illegal. The time
specified by law having expired he is
not now entitled to an appeal. Judges
Gunster and Edwards We're on the
bench when the application was made
and granted a rule to show cause why
the appeal should not be stricken off,
making 1t returnable to argument
court.
Smith Tcudcrcd the Cash.
After the application for the rule. At
torney Smith went to ProthonOtary
Pryor and paid him $47.13 in cash and
took his check. He told Mr.. Pryor to
hold the money until the amount of the
costs Is finally determined and the
money was sealed in an envelop and
placed In the ProthonOtarys safe. The
law provides that no appeal shall be
valid unless the costs are first paid in
cash to the prOthOnotary. On this point
there is a decision of the Supreme court
in an appeal taken from the common
pleas court of Lancaster county.
On Oct. u. 1871, Harrison Graham
brought an action in assumpsit against
Asahel c. Walker and Samuel Walker,
partners, In the common pleas of Lam
caster county. Arbitrat tors found an
award for 1854. 20 in his favor. The de-
PENDANTS entered an appeal, and accord
ing to the record, the costs were paid
prothonotary by defendants by draft"
On rule to show cause on the applica-
tion of the plaintiff the court struck off
the appeal upon the ground that the
costs had not been paid in money The
defendants took out q writ of error to
IA r.ar t.t ay,1 sol. o.,
ror the striking off of the appeal. In
passing upon the case Justice WILL
Jams, of the supreme court. said:
THE arbitration act of 1896 makes the
payment Of all costs that may have ac-
crued in the action a condition prece-
dent ito an appeal from an award of ar
bitrators. The payment of the taxed
costs is therefore indispensable to the
perfection and validity Of an appeal.
but the prothonotary has no right to ac-
cept anything but money or cash in
payment of costs, and therefore no
valid appeal can be taken from an
award of arbitrators if the costs are
paid by note. check or draft or in any
thing but actual cash"
If the appeal is stricken off the award
of the arbitrators will stand, unless the
supreme court should interfere.
MIR. Smiths Property Transferred.
Attorney Smith was the owner OF
valuable properties on Adams. Jeffer-
son and Monroe avenues. worth in the
neighborhood of 100000, but he sold
them to his wife on Aug. last in con-
SideratiOn of 81 and love and affection
A month later the deed was recorded
in the Office of Recorder of Deeds Hues-
ter. There are four lots mentioned in
the deed each 40 by $50 feet in size
Two of the lots are on Adams avenue
each improved with double frame
frame buildings in the front and rear
A lot on Jefferson avenue is improved
In similar manner and a lot on Mon
roe avenue, between Vine and Null
berry, Is improved by fine residence
These are the only properties Mr.
Smith owned in the city at the time
the transfer was made. His wife be-
comes responsible for the payment of
the mortgages against them. After the
status Of Mr. Smiths appeal has been
determined, steps will be taken to as
certain the legality of the transfer of
the properties by Mr.. Smith to his wife.