
    Somerset Colliery Company v. John, Appellant.
    
      Mortgage — Costs—Appeal—Reversal of judgment.
    
    Where on a trial of a scire facias sur mortgage the plaintiff recovers less than the amount claimed, and only the amount tendered, and the judgment is reversed on appeal by the plaintiff, the defendant on an appeal from the same judgment cannot have the question considered as to his liability for interest, costs and attorney’s commissions. This liability depends on the verdict on the retrial of the case.
    Argued Jan. 17, 1910.
    Appeal, No. 23,
    Oct. T., 1910, by defendant, from judgment of C. P. Somerset Co., Feb. T., 1905, No. 18, on verdict for plaintiff in case of Somerset Colliery Company v. A. F. John.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Appeal dismissed.
    Scire facias sur mortgage.
    The facts appear by the report of Somerset Colliery Co., Appellant, v. John, ante, p. 228.
    
      Error assigned was as follows: 1. The court erred in making the following order: And now, July 21, 1909, after consideration thereof it is ordered and directed that the rule to show cause why judgment should not be entered in above case without costs, be discharged; it is further ordered and directed that the rule to show cause why judgment should not be entered without attorney’s commission, be discharged.
    
      W. H. Ruppel, with him W. H. Koontz and J. G. Ogle, for appellant.
    
      H. Gordon McCouch, L. C. Colburn and Ernest O. Kooser, for appellee.
   Opinion by

Mr. Justice Brown,

February 14, 1910:

On the appeal of the plaintiff in this case we have just reversed the judgment below and ordered a new trial. Whether this appellant will ultimately be liable for interest, costs and attorney’s commission is not now to be decided, for the action is still pending and the amount of the verdict is not to be anticipated.

Appeal dismissed.  