Appeal, No. 205 | Pa. Super. Ct. | Mar 1, 1912
Opinion by
This case originated before a magistrate of the city of Philadelphia. It was before us on appeal, by the plaintiff, once before, and, judging by the plaintiff’s claim and the facts alleged in the affidavit of defense, the procuring of a judgment in favor of the plaintiff has depended upon a very sharp point. When the case was here before, the facts and legal questions involved up to that date, were very fully discussed by President Judge Rice, and the court below was sustained in discharging a rule for judg
After the record was again lodged in the common pleas, plaintiff’s counsel, on February 27, 1909, entered and served a rule on defendants to plead to a declaration theretofore filed, and on March 13, 1909, defendants entered their pleas and thereafter plaintiff had the case placed on the trial list for Monday, February 7,1910. By reason of the defendants failing to appear for trial, it appears, of record that, on motion of plaintiff’s counsel, the court below “affirmed the judgment of the magistrate.” On June 9, 1911, a writ of fi. fa. was issued and on June 16, defendants’ counsel entered, “Rule on plaintiff to show cause why the judgment should not be set aside and opened and writ of fi. fa. stayed, all proceedings to stay in the meantime.” Following this we find this entry: “June 26, 1911, rule absolute, eo die exception noted for plaintiff.” Our question then is, did the court below commit reversible error in setting aside and opening the judgment which was granted on February 7, 1910, as shown by the record, by affirming the magistrate’s judgment?
It should be borne in mind that this case came into the common pleas by appeal, and therefore, the proceedings thereafter would be de novo as to the declaration, pleadings and evidence; but the cause of action must continue the same as it was before the magistrate: Moore v. Wait, 1 Binney, 219; Wright v. Guy, 10 S. & R. 227; Caldwell v. Thompson, 1 Rawle, 370; Reitze v. Meadville & L. Ry. Co., 126 Pa. 437" court="Pa." date_filed="1889-05-13" href="https://app.midpage.ai/document/reitze-v-meadville--l-ry-co-6239373?utm_source=webapp" opinion_id="6239373">126 Pa. 437; Justice, v. Meeker, 30 Pa. Super. 207" court="Pa. Super. Ct." date_filed="1906-03-12" href="https://app.midpage.ai/document/justice-v-meeker-6275197?utm_source=webapp" opinion_id="6275197">30 Pa. Superior Ct. 207.
The appellee has presented no paper-book and we are unable to find anything in ¿the record, as printed and furnished to us by appellant’s counsel, authorizing the court of common pleas, in an appeal from a judgment of a justice of the peace, to grant a judgment for plaintiff, on his motion, “Affirming the judgment of the magistrate.” The practice in this little hotly contested case seems to
We do not feel called upon in this case, on the facts as they appear of record, to attempt to sustain the court below in opening the judgment, a considerable time after the term at which it was entered, because we consider it a fair inference, from the record, that the judgment was really set aside or striken off for reasons appearing of record. The writer has known of rules of court, in some of the counties, which authorized the court, in appeals from justices of the peace, when the case was reached for trial and the defendant did not appear, to grant judgment in favor of plaintiff, on his motion, for the amount of the
But suppose, arguendo, that the said order of court really did open the judgment sixteen months after its entry, and long after the term at which it was granted had ended, then the question arises, Was it an adverse judgment; one entered after a hearing or trial? In King et al. v. Brooks et al., 72 Pa. 363" court="Pa." date_filed="1873-01-06" href="https://app.midpage.ai/document/king-v-brooks-6234518?utm_source=webapp" opinion_id="6234518">72 Pa. 363, the Supreme Court, through the late Mr. Justice Sharswood, said: “It is true that no court has power to strike off or vacate a judgment which is regular on its face. But every court has power to open a judgment in order to give the parties a hearing or trial. In case of judgments by confession or default there is no limit of time to the exercise of this power, but in case of judgments entered adversely after a hearing or trial it is settled that it must be done before the end of the term at which they are entered,” citing cases. In Hill v. Egan, 2 Pa. Super. 596" court="Pa. Super. Ct." date_filed="1896-11-09" href="https://app.midpage.ai/document/hill-v-egan-6271651?utm_source=webapp" opinion_id="6271651">2 Pa. Superior Ct. 596, we followed the above decision, as we again did in Herndon Borough, 19 Pa. Super. 127" court="Pa. Super. Ct." date_filed="1902-01-21" href="https://app.midpage.ai/document/herndon-borough-6273623?utm_source=webapp" opinion_id="6273623">19 Pa. Superior Ct. 127. Now, it cannot be pretended that the judgment in question was entered after a hearing or trial. The very reason the judgment was granted was because the defendants were in default in not appearing for trial when the case was called. Therefore, it was a judgment by default; a judgment moved for by the plaintiff’s counsel based on a technical point. Therefore, if the court really opened the judgment, instead of setting it aside, there was no error.
The assignment of error is not sustained. Appeal dismissed at cost of appellant, Arthur F. Schneider, and order affirmed.