Stedman v. Poterie

139 Pa. 100 | Pa. | 1891

OpmioN,

Mb. Justice Mitchell:

The power of courts of Common Pleas to make rules authorizing tbe entry of judgment for such part of the plaintiff’s demand as is not denied by an affidavit of defence, and proceeding to issue and trial for tbe rest of tbe claim, was established in general by Vanatta v. Anderson, 3 Binn. 417, and a rule directing in the most specific terms just such a course was again sustained in Russell v. Archer, 76 Pa. 473.

The effect of the entry of such a judgment for part of the claim has been passed upon in several cases, and is no longer open to question. In McKinney v. Mitchell, 4 W. & S. 25, the plaintiff entered judgment for part of his claim, liquidated the amount, and received the money from defendant. It was held that all this was no bar to his proceeding to trial for the rest of his claim. Coleman v. Nantz, 63 Pa. 178, to the same effect, was a case from Allegheny county, and under a rule substantially the same, but less specific in terms than that in the present case. In Russell v. Archer, 76 Pa. 473, the plaintiff, not only entered judgment for part of his claim, but issued execution, which however appears to have been superseded by the entry of bail for stay. And in Commonwealth v. McCleary, 92 Pa. 188, an action against two on a joint and several bond, but depending on the same principles, judgment was entered against one defendant, the amount liquidated, execution issued, and a sum realized, but the court held that the plaintiff was entitled to go on to trial and final judgment against the other defendant,

The learned judge in the present case, while conceding the fight of plaintiff under the foregoing authorities to enter judgment, and to liquidate the amount for the purpose of lien, was of opinion that, by issuing execution, he had made the judgment final, and precluded himself from further proceeding. In this we think there was error. As already seen, our cases hold that the amount of the first judgment may be liquidated, (McKinney v. Mitchell,) execution may be issued, (Russell v. Archer,) and the money partly made (Commonwealth v. McCleary,) without barring plaintiff’s right to proceed. Whether a judgment possessing these attributes should be called interlocutory, or “in the nature of interlocutory,” as by SERGEANT, J., in McKinney v. Mitchell, or final for certain purposes only, as in tne rule of court approved in Russell v. Archer, is a question of words, not of substance. The result is the same by whichever name it is called. “ The interlocutory judgments most usually spoken of,” says Blackstone, volume 3, p. 397, “ are those incomplete judgments whereby the right of the plaintiff is indeed established, but the quantum of damages sustained by him is not ascertained.” An interlocutory judgment, the amount of which is liquidated, and which is a lien and can be collected by execution, would probably have seemed to Blackstone, and certainly to Coke, as much a solecism in the common law as two final judgments in the same suit. But equity, disregarding mere names and forms, where it is necessary to preserve substance, finds no difficulty in treating such a judgment as in effect interlocutory and so calling it. “ Final judgments are such as at once put an end to the action : ” 3 Bl. Com., 398. Looking at the substance of this definition in the light of equitable principles, the courts of Pennsylvania have held that, in the class of cases now under discussion, the first judgment shall not be considered final, in the complete sense of putting an end to further recovery, unless the court or the parties intended that it should have that effect. This was pointed out by Hampton, P. J., in his opinion in Coleman v. Nantz, reported in 6 Pa. 178: “ The record shows very clearly that they had no intention to accept it as a final judgment. But, it is said that in law it is to be treated as such, without regard to plaintiff’s intention. This is the real question in the cause. A judgment is not necessarily final, as long as there Remains any controverted question of law or fact to be determined.” In affirming the judgment, this court said, through the late Justice Williams, that we might properly treat it as interlocutory, “ for it was not intended to put an end to the suit.” In Russell v. Archer, where, as in the present case, there had been an execution issued, this court said it was “ urged that the law does not tolerate such an incongruity as the entry of two judgments in the same action. To avoid this incongruitj'- the first was held as interlocutory- Where it is not designed to put an end to the suit, there is no impropriety in so treating it.” To the same effect, it is said in Commonwealth v. McCleary, supra: “ Whenever the manifest justice of the case requires it, and it is not shown that the first judgment was intended to be final, the inclination of the modern cases is to hold it to be interlocutory only.” These authorities are conclusive on the present case. The record shows that the first judgment was not intended to put an end to the action, and therefore it was not in that sense final.

It is said that this case is not within the rule of court. It is difficult to see why not. The rule provides for such a judgment as to all parts of the plaintiff’s claim admitted or not denied. This of course means, not sufficiently and properly denied according to the forms and requirements of the law and the rules of court. A denial falling short of these requisites is no denial at all. Prior to the procedure act of 1887 there was no express legislative authority for a judgment for want of a sufficient affidavit of defence. The act of 1885 and its supplements spoke only of judgments for want of an affidavit, and the practice for half a century rested undisturbed on the incontrovertible judicial deduction that an insufficient affidavit was legally no affidavit at all. So, it would seem to be clear that a rule of court requiring a denial applies equally whether there is no attempt to deny, or an attempt which falls short of the necessary requirements. We do not desire, however, to interfere with the court’s interpretation of its own rule, nor is it necessary to do so. Whether this case was within the general rule of court or not, the order granting judgment “with leave to plaintiff to proceed to trial” for the other part of his claim, was a special rule sufficient for this case. The leave to proceed shows conclusively that the judgment for part was not to terminate the action, and the cases heretofore cited establish that the plaintiff might issue execution on that judgment without giving it such effect.

No hardship is likely to be inflicted on the defendant, as is deprecated in appellee’s argument. The execution on the interlocutory judgment will be under the control of the court where equitable grounds exist for restraining it. And a judgment which has such elements of finality as liquidation of amount, and capacity to sustain execution for it, may well be held sufficiently final to sustain a writ of error. Under the affidavit of defence law, the courts of this state were confronted with a difficulty. On one hand, to refuse the first judgment the advantages of lien and execution would be to deprive plaintiff of the speedy recovery the affidavit law intended, and practically to deny him complete justice in cases where, as suggested by Hampton, P. J., in Coleman y. Nantz, supra, “ a defendant in failing circumstances by tendering a judgment for three fourths of the demand might compel him to choose between losing one fourth or the whole of his claim.” On the other hand was the technical dilemma of having two final judgments in the same action, or an interlocutory judgment with all the attributes of finality except that of superseding further proceedings. Our predecessors chose the latter branch of the dilemma, and we are bound by their precedents; but the powers of the court are still elastic enough to avert any injustice from this application of equitable principles in modification of the forms of the common law, and the precise manner in which it shall be done may well be left for settlement when the case shall arise.

It is not necessary to do more than suggest, in passing, that Brazier v. Banning, 20 Pa. 345, and similar cases, in which there was no rule of court authorizing a judgment for part and further proceedings for the rest of the claim, stand upon entirely different grounds.

The procedure act of 1887 has no bearing on the present case, but a reference in the opinion of the court below to Marlin v. Waters, 127 Pa. 177, leads me to say that the opinion in that case was not intended to imply that existing rules of court, as to taking judgments for part of a claim, had by the act received such legislative sanction as practically incorporated them in the act, or took them out of the control of the courts. All that the act does is to mention them in such manner as to avoid the implication that they are abolished. Rules •upon the subject, old or new, are still within the authority and control of each court in regard to its own practice.

Judgment reversed, and record remitted for entry of judgment on the whole claim.