Fisher v. Hestonville, Mantua and Fairmount Passenger Railway Co.

• Decision Date: 02 May 1898
• Docket Number: 271
• Citation: 185 Pa. 602,40 A. 97
• Parties: Roman Fisher, Appellant, v. Hestonville, Mantua and Fairmount Passenger Railway Company
• Court: Pennsylvania Supreme Court

40 A. 97

185 Pa. 602

Roman Fisher, Appellant, v. Hestonville, Mantua and Fairmount Passenger Railway Company

No. 271

Supreme Court of Pennsylvania

May 2, 1898

Argued January 14, 1898

Appeal, No. 271, Jan. T., 1897, by plaintiff, from order of C.P. No. 3, Phila. Co., March T., 1895, No. 885, making absolute a rule for a new trial. Reversed.

Trespass for personal injuries.

New trial granted after expiration of term at which judgment was entered.

From the record it appeared that on January 16, 1896, a verdict was rendered for plaintiff for $1,500.

On January 20, 1896, the appellee moved for a new trial and assigned reasons in support thereof, and on January 30, 1896 after an argument before the court in banc, the rule for a new trial was discharged. On February 4, 1896, the jury fee was paid and judgment was entered on the verdict.

On February 21, 1896, the appellee filed a bill of exceptions and on the same day a writ of certiorari from the Supreme Court (of January term, 1896, No. 273), was brought into the office. On February 25, 1896, the record was certified for the Supreme Court, but was not filed in said court.

On November 27, 1896, the appellee filed a motion for a new trial. The docket entry is as follows: "November 27 1896, motion for a new trial and reasons filed;" but no reasons were filed.

The court made the following order:

"And now, November 27, 1896, on motion of J. Bayard Henry, Esq., attorney for the Hestonville, Mantua and Fairmount Ry. Co., one of the defendants in the above entitled case, the court grant rule on the plaintiff to show cause why a new trial should not be ordered. Returnable on the day of December, 1896."

On December 31, 1896, the court made absolute a rule for a new trial.

Error assigned was the order of December 31, 1896.

The judgment is reversed, and the record remitted with leave to the defendant, appellee, to file a petition nunc pro tunc, setting forth the grounds for new trial and for further proceedings by the court thereupon.

Joseph S. Goodbread, for appellant. -- In the case of Ullery v. Clark, 18 Pa. 148, this Court held that the lower court had no power to alter its judgment after the lapse of several terms: Mathers v. Patterson, 33 Pa. 485; Catlin v. Robinson, 2 Watts, 379; Stephens v. Cowan, 6 Watts, 513; Com. v. Beale, 25 Pa. 11; Com. v. Keating, 57 Pa. 291; Syracuse Pit Hole Oil Co. v. Carothers, 63 Pa. 379; King v. Brooks, 72 Pa. 363; Conrad v. Commercial Mut. Ins. Co., 81* Pa. 71; In re Kensington & Oxford Turnpike Co., 97 Pa. 261; Lance v. Bonnell, 105 Pa. 46; Hill v. Egan, 2 Pa. Superior Ct. 596; Hill v. Harder, 3 Pa.Super. 473.

J. Bayard Henry, with him Russell Duane, for appellee, cited Dorney v. Mertz, 8 Phila. 553; Cochran v. Eldridge, 49 Pa. 365; Lance v. Bonnell, 105 Pa. 46; In re Kensington & Oxford Turnpike Co., 97 Pa. 260.

Before STERRETT, C.J., GREEN, WILLIAMS, McCOLLUM, MITCHELL, DEAN and FELL, JJ.

OPINION

MR. JUSTICE MITCHELL:

The remedy for wrongful verdicts by new trial was established in England before the foundation of Pennsylvania. It was therefore part of the common law of jury trials which the colonists brought with them, and has always been exercised here: Kalbach v. Fisher, 1 Rawle, 323. The older remedies of audita querela and error coram nobis, though in existence here, have in practice been superseded by the more convenient instrument of a new trial.

The principles on which the authority rests are well settled. Until judgment the verdict is under control of the court by virtue of its common-law powers, as the judge is an essential constituent of the tribunal for jury trial, and may refuse judgment and set aside the verdict for any reason which appeals to his judicial discretion. It is not necessary that his reason should appear of record, though it is the better practice that it should: SHARSWOOD, J., King v. Brooks, 72 Pa. 363. And even after judgment the court may during the term at which it was entered, allow a rule for new trial nunc pro tunc and make it absolute: Lance v. Bonnell, 105 Pa. 46. But at the expiration of the term at which it was entered the common-law power to set aside a judgment regular on its face, ends: King v. Brooks, supra. The further control of the court over it for that purpose is equitable, and was asserted originally by bill in chancery: Cochran v. Eldridge, 49 Pa. 365. The ground of its exercise therefore is exceptional, and should appear of record, so that it may clearly appear "that it is not a mere arbitrary exercise of discretion:" King v. Brooks, supra.

In the present case the verdict was...