Crew, Levick & Co. v. McCafferty

124 Pa. 200 | Pa. | 1889

Opinion,

Mr. Chiee Justice Paxson :

The plaintiff below recovered a verdict for $113. The defendants obtained a rule for a new trial, and after argument the court made the following order: “ March 21, 1887; rule discharged on condition that the plaintiff within ten days file a remittitur for all damages over $75, otherwise rule absolute.

There is no doubt as to the power of the court to make this order. It may impose terms upon granting a new trial, and this is the constant practice: McBride v. Daniels, 92 Pa. 332.

The plaintiff attorney filed a remittitur in accordance with the above order on April 20, 1887. This, it will be observed, was not within ten days, and the rule for a new trial consequently became absolute. Next in point of time followed the order of court which is the subject of the present contention. It is as follows : “ And now, to wit, September 22, 1888, it is ordered that the record be corrected so as to read: Rule .discharged on condition that the plaintiff within thirty days file a remittitur for all damages over $75 and costs; otherwise rule absolute.” This was eighteen months after the original order had been made and several terms had intervened.

We have no doubt of the power of the court to amend its record so as to make it conform to the truth, even after the term has expired, or writ of error lodged in the office. The wealth of authority upon this question is so great that it is almost unnecessary to draw upon it. I will refer only to two of our latest cases: Cohn v. Scheuer, 115 Pa. 178; Smaltz v. Hancock, 118 Pa. 550. If, therefore, the order of September 22,1888, was an amendment of the record, the case would be free from difficulty. But it was not in any sense an amendment. There was nothing upon the record to amend by. It is conceded the original order of court specified ten days as the time within whicli the remittitur should be filed. It is true the words “ton days” were omitted from the order as copied upon the appearance docket. That was a mistake of the clerk which the court had the power to amend at any time. This amendment appears to have been made, as the words “ten days ” are interlined on the docket. B ut the entry of September 22d was an original order, with nothing upon the record to support it. It was an alteration, not an amendment, the effect of which was to deprive the defendants of their right to a new trial, which right, by reason of the lapse of time, had become absolute and beyond the power of the court below to interfere with it.

The judgment is reversed, and a venire facias de novo awarded.