Weidner v. Matthews

11 Pa. 336 | Pa. | 1849

The opinion of this court was delivered by

Bell, J.

No doubt, the stipulation saving the rights of the defendant below, notwithstanding the entry of the judgment by consent, would enable him to maintain this writ of error, and therefore the motion to quash it, as having issued to remove a judgment confessed, must be denied. But is there anything apparent upon the record, upon which the writ can be made to operate ? The effort is not to impeach the judgment, but leaping over that, the plaintiff in error seeks to strike off the appeal, because of the insufficiency of the recognisance acknowledged and the sureties of the appellant. Before Means v. Trout, 16 S. & R. 349, and the Burgess of Huntingdon v. Jackson, 2 Pa. R. 431, the practice was to quash appeals from judgments of justices of the peace and awards of arbitrators, for any substantial defect or irregularity in the form of the statutory recognisance. But, from the ignorance or carelessness of the officers intrusted with the business of taking these securities, and the many consequent blunders committed by them, this practice became intolerable from the hardships it entailed on suitors, and this court, in the cases just cited, felt compelled to institute a different rule for the government of future cases. Since then, it is the duty of the appellee, dissatisfied with the recognisance, to rule the appellant to perfect his bail within a prescribed period, or, in default thereof, to suffer a dismissal of his appeal. This step was not adopted in the case before us. The appellee pursued the old practice by a peremptory motion to quash. But the court refused this, and granted leave to amend, first on the 17th of April, 1846, and again in November 1847. To do this was entirely within the power of the court, in the exercise of a sound discretion. Amendments are, with us, liberally permitted where the justice of the case requires them; and no injury is thereby inflicted on the adverse party. Where this discretion has been exercised in the conduct of a cause depending in the Common Pleas, this court will not interfere unless it be apparent a plain mistake has been committed. None such appears here, and, consequently, the action of the court below in permitting a second amendment is not open to impeachment. The second attempt to amend resulted, however, in another blunder. Instead of adopting the form of the recognisance presented by the act of March 1845, the plaintiff below, ignorant, as it would seem, of this statute, pursued the exploded condition given by the act of 1836. This was an error which, perhaps, entitled the defendant to have the appeal quashed. But, instead of applying to the court for this purpose, he disregarded the defect, pleaded to issue, and, a year after the entry of the last recognisance, actually submitted to a trial; when, being satisfied the merits were against him, he consented to the entry of a judgment for a specified sum. After all this, he comes to us with an application to quash the appeal. There are two answers: the first is, the motion should have been first made in the court below: the second, that if made there, after trial and judgment, it would have been too late. In Zeigler v. Forster, 3 S. & R. 238, it was ruled that pleading to issue and keeping the cause under rule for trial for several terms, amounted to a waiver of objection to the recognisance. In Clarke v. M’Anulty, 3 S. & R. 369, acquiescence by a defendant for twelve months, and putting the plaintiff to the expense of preparing for trial, was held to be a waiver of bail on the appeal; and finally, in Cameron v. Montgomery, 13 S. & R. 128, a delay of a year in taking exception to the recognisance, and thus inducing the plaintiff to prepare for trial, concluded the defendant. But our ease is stronger against the pretension of the plaintiff in error, then either of those; for here, there has been a trial and judgment. The rule is, that exceptions of this kind must be taken in reasonable time, and before other steps to prepare the cause for trial, or the exceptions will be considered as waived. All the decisions agree in this. The plaintiff in error is, therefore, without any ground to stand on in the court.

Judgment affirmed.