2 Pa. Super. 596 | Pa. Super. Ct. | 1896
Opinion by
On the trial of this cause in the court below, February 6, 1893, the plaintiff obtained a verdict. February 8, the defendant moved for a new trial. March 7, the motion was refused. March 14, judgment was entered on the verdict. March 19, the defendant took an appeal to the Supreme Court. March 5, 1894, the appeal was quashed, for the reason that the record showed nothing that could be reviewed.
But as the trial occurred before the announcement of the decisions in Rosenthal v. Elirlicher, 154 Pa. 396; Connell v. O’Neill, 154 Pa. 582, and Com. ex rel. v. Arnold, 161 Pa. 320, and as “ the failure of counsel to have the record put in proper shape for review was owing to erroneous ideas of practice, which were corrected in those decisions,” the court added: “We think this is a very proper case for relief by the court below by the allowance of a bill of exceptions nunc pro tunc, or in such other form as it may in its discretion deem best.”
Upon the facts in the case, apparently undisputed, the Supreme Court said that the plaintiff was not entitled to recover. The defendant, however, assuming that the plaintiff would press the case no further, allowed the matter to rest, upon the assurance that, should the plaintiff proceed, the court would give relief by a bill of exceptions or a new trial.
March 20, 1895, the plaintiff issued a scire facias against the bail in error. April 15, the defendant obtained a rule for a new trial nunc pro tunc. December 12, 1895, this rule was made absolute, and proceedings on the scire facias suspended. From this order the plaintiff appeals. The question here is whether the court below had power to vacate the judgment which had been entered, and grant a new trial under the circumstances.
While there is no limit to the time within which a court may
It is clear from abundant authority that the court below exceeded its power in granting the rule. It was too late to open the judgment, and the order making absolute the rule to open is reversed and set aside.