92 Pa. Super. 359 | Pa. Super. Ct. | 1927
Argued October 21, 1927. This suit in assumpsit was tried in the Municipal Court. Judge KNOWLES, the trial judge, directed a verdict for the plaintiff. Within the time fixed by the rules of the Municipal Court, the defendant filed a motion for a new trial which after a number of extensions of time, was dismissed on February 16, 1927, by the trial judge and Judge GLASS, sitting as a court en banc, the third member of the court, Judge LEWIS, not participating. On February 16, 1927, judgment was entered on the verdict. On February 17th, a petition for oral re-argument was presented to Judge LEWIS and allowed, with a stay of proceedings. Thereafter, all three judges, sitting in banc heard the oral re-argument and during the third term of court after judgment was entered, on April 28, 1927, the court (Judge KNOWLES dissenting) revoked the previous order of February 10, 1927, dismissing the motion for *361 a new trial and opened the judgment and granted a new trial. From this order the plaintiff has appealed.
The first objection urged is that the court had no jurisdiction to grant the motion. The power of the court to open adverse judgment ends with the term, but in this proceeding, it will be observed that the judgment was entered on February 16th and within the term, on February 17th, the judge ordered an oral re-argument, all proceedings to stay. The appellant, however, argues that this was not sufficient to suspend the finality of the judgment at the end of the term, that the only way to do that was by entering a rule to show cause. This seems to be only a question as to the use of terms. The petition for a re-argument stated the reasons why the equitable powers of the court were invoked and the reasons were thus brought on the record. The court, in its order, has definitely expressed the thought that the judgment should remain within its control. The order suspending all proceedings was ample evidence of that and the court being still within the term could leave the way open for further action in regard to the judgment. The order, having been made within the term, no objection can be made that it was not disposed of until a subsequent term. Lance v. Bonnell,
Judge KNOWLES, in his dissenting opinion, relied upon the case of Pennsylvania Stave Company's Appeal,
The second objection is that the proceedings were not according to the rules of the Municipal Court. This reason seems not to have been considered in the lower court as Judge KNOWLES in his dissenting opinion does not allude to it. The court is ordinarily the best interpreter of its own rules and the appellate court in such cases, should have the benefit of the views of the lower court, as to the construction to be placed on its rules. However, we have considered the matter and find no error.
The Municipal Court is a court at present composed of ten judges. With these judges, or a majority of them, primarily resides the final decision of any question which may properly be brought before the court en banc. To expedite the business of the court, three judges are designated from time to time to sit en banc. Under this system, ordinarily, there is nothing to prevent these three judges sitting as the court en banc and in a proper case and within a proper time to set aside a judgment, for under the rules, said court is the final arbiter.
As to the merits, the three judges sitting in the case, after reviewing the testimony concluded that there was error in not permitting a witness to refresh his memory by referring to a written memorandum. The memorandum had been made by the witness and was not intended to be offered in evidence, but merely to be used as an aid to memory. We think the court en *363
banc was right, but apart from this, there were other reasons for the granting of the new trial which were not stated and under the recent cases of Dorris v. Bridgman Co.,
The order is affirmed.