The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1896-03-31
THAT AWARD WILL STAND
Judge II. u. Edwards Refuses to
Strike 1t Off.
HISTORY or THE PROCEEDING
Attorney l. II. Burns Obtains an Award
Of $4,000 Against Attorney Cor.
nciius Smith for Alleged Libel
Published Conserving Him.

an opinion yesterday refusing to strike
or the award of $4,000 given by Afpi-
traitors Fred w. Fleitz, George Nj. Wat
son and II. +. Duffy, In the suit for Soo.-
O00 brought by Attorney /. IL. Burns
against Attorney Cornelius smith ana
John q. Jennings. founded on alieeeu
libelous charges contained in Il paper
book filed of record i'm the Supreme
court.
In July, 1895. Mr.. Smith filed his pa
per book with the prothonotary OF the
supreme court ut Philadelphia ana III
il he charged Mr.. Burns and Others
with soliciting and procuring many oi
the officials of the court of this county
to combine and confederate for the pur-
pose of defeating John q. Jennings IN
his trespass suit against the Lehigh
Valley Railroad company. The first
effort of this alleged combination, ac-
cording to the charges in the paper
book. was to send some unknown per-
son to the city hospital in Wilkes
Barre to imDersonate James Jennings,
the Mud Run wreck on Oct. 10. lSSS
The rest of the charges include sub
stantially that juries were packed. etc.
and that the entire machinery Of the
court from the bench down was ar
rayed against the plaintlf to defeat
him.
O'Brien y Kelley representing Mr..
Rurns brought suit in court against
Mr. Smith for S50.OO0. The. case was
tried before arbitrators. hut Mr.. smith
was not represented at any of the. hear
ings. either personally or by counsel.
He was served with sufficient notice
but failed to put in an. appearance. At
turney A. J. Colborn, jr., was one OF
the arbitrators chosen originally. but
l.. n, Ia.
city and r. l.. Duffy was substituted
in his stead
THE ARBITRATORS CHOSEN.
ProthonOtary &. T.. Pryor selected the
arbitratorS on account of the failure ot
Mr.. Smith to take any action in the
matter. They met eight times alto
gether and on Sept. 10, 1888. they agreed
upon the award of $l5,OO0 in favor Of
the plaintiff. ON Sept. -, four days
later, Mr. Smith came before Prothon-
otary Pryor and entered an appeal
against the award, paying the costs by
check. He complained of the size of
the arbitrators' fees and instructed Mr..
Pryor to hold the check, The costs
amounted to Si1.l3, and exceptions We're
filed by Mr.. Smith against the amount
charged. ON oct. H. twenty-five days
after the award was made, Mr.. Smith
came and took his check and paid the
fun amount of costs in currency.
The attorneys for the plaintiffs at
tackled the appeal on the ground that
Mr.. Smith did not pay the costs i'm cash
within twenty days. The law provides
that in cases of appeal. the one appeal
ing must take action ON or before
twenty days after judgment has been
entered, and the costs must be paid in
cash. In his opinion Judge Edwards
says that among the numerous reasons
alleged for setting aside the award,
there is no evidence to sustain the al
legation of misbehaviOr on the part of
the arbitrators, nor can anything ir-
regular be detected in the arbitration
proceedings: nor Is it deemed necessary
to cite any cases to show that the pro-
ceedings were regular and in accord
ance with the rules of practice enum-
Grated in the compulsory arbitration
law and confirmed by decisions of the
Supreme court.
JUSTIFIED BY OUR COURTS.
The opinion deals with the reason set
| ting forth that there was no cause of
| action. by stating that 1t is settled by
| the English courts that judges, coun-
| sci, parties and witnesses are abso-
| lutely exempted from liability to an
| action for defamatory words published
| in the course of judicial proceedings
| This doctrine. Judge Edwards says, l.
qua lifted i'm the American courts as t.
| parties. counsel and witnesses to the
| extent that their statements made in
| the course of an action must be pertin-
| ent and material tn the case, and he
| declares that the modification of the
English doctrine made by the Ameri-
can courts is wise and sufficiently con-
SerVative.
The opinion on the rule to show cause
why the appeal entered by the defend
| ants should not be stricken off recites
that it is unnecessary to discuss the
| facts disclosed by the record The law
is clearly stated by the Supreme court
| one of the conditions precedent to 4
valid appeal from an award of arbi-
| traitors Is the payment of costs within
| the twenty days allowed by the act
| and 1t has been repeatedly held that
actual payment is required.
| Payment by check. or by draft. or by
| charging the costs to the appellants
| attorney is not Dayment within the
meaning of the act. In the case now
| under consideration the record and tn,
| dispositions show that the costs wer,
paid by check. and that actual paymen,
! in money was not made until oct. II
1895. twenty-five days after the aware
| was filed. The rule To strike off The
| appeal is made absolute and the appea
| is stricken off.
| Judge Edwards at the conclusion OF
his opinion says that President Judg,
| Archibald was not present during tn,
| argument Of these rules and has there.
| fore. taken no part in the disposition oi
| them.