O'Donnell v. Flanigan
| Decision Date | 15 December 1898 |
| Docket Number | 85-1898 |
| Parties | Patrick O'Donnell, Appellant, v. Thomas Flanigan |
| Court | Pennsylvania Superior Court |
Argued October 7, 1898
Appeal by plaintiff, from order of C. P. No. 3, Phila. Co.-1897, No 670, making absolute motion for new trial.
Motion for new trial nunc pro tunc. Before the court in banc.
It appears from the record that the action was trespass for assault and battery resulting in a verdict for the plaintiff on January 12, 1898, for $ 324. On March 9, 1898, execution was issued on the judgment. On March 16, 1898, after the expiration of the term in which the judgment was entered, a motion for a new trial was made by leave of court with stay of proceedings. On May 27, 1898, this rule for a new trial made absolute.
Other facts appear in the opinion of the court.
Plaintiff appealed.
Error assigned among others was in granting a new trial after the term had expired in which the verdict and judgment had been rendered.
DeForrest Ballou, for appellant. -- The right of the trial judge to grant a new trial at the expiration of some lapse of time has been considered several times by the courts in this state and the settled opinion now is that the right of a court to grant a new trial is lost after the expiration of the term in which the verdict was rendered: Oil Co. v. Carothers, 63 Pa. 379; Stephens v. Cowan, 6 Watts, 511; Mathers v. Patterson, 33 Pa. 485; King v Brooks, 72 Pa. 363; Lance v. Bonnell, 105 Pa 46; Hill v. Egan, 2 Pa.Super. 596; Fisher v. Railway Co., 185 Pa. 602.
Henry K. Fries, for appellee. -- In the case of a judgment by confession or default there is no limit to the exercise of the power to grant a new trial: Hill v. Egan, 2 Pa.Super. 596.
The verdict in this case being practically one of default, which the court has jurisdiction to open, even after the end of the term, and even where there is no other defense than that of statute of limitations, the court was justified in granting a new trial in order to let the defendant into a defense: Bates v. Cullum, 163 Pa. 234; Ellinger's Appeal, 114 Pa. 505; Sossong v. Rosar, 112 Pa. 197.
A reference to the statement filed in this case shows that the action was not brought within two years after the occurrence, and was therefore barred by the statute of limitation, Act of March 27, 1713, sec. 1, 1 Sm. L. 76, Act of June 24, 1895, sec. 2, P. L. 236, and in the very recent case of Abeles v. Powell, 6 Pa.Super. 123.
Before Rice, P. J., Orlady, Smith, W. W. Porter and W. D. Porter, JJ.
From an examination of the petition and depositions submitted in this case, we cannot resist the conclusion that the application to open the judgment is based on the negligence of the defendant himself. He was sued in trespass, for damages alleged to have been caused by an assault on the plaintiff, and he retained an attorney to appear and defend the action. On April 22, 1897, an appearance and plea were regularly entered and the cause thus put at issue. On October 28, 1897, the defendant consented to the withdrawal of his attorney's appearance and signed a paper to that effect, after which the attorney gave the matter no further attention. The defendant failed to engage another attorney or to take any further steps in the cause. The case was called for trial on January 12, 1898, in the absence of the defendant and a verdict was rendered in favor of the plaintiff. So far as the record showed the defendant's former counsel remained as attorney of record at the time of trial, and so continued until after the judgment had been entered on the verdict and the term of the court had expired.
After the term at which judgment was entered had ended, an application, nunc pro nunc, for a new trial was made, which was afterwards granted. From this order the plaintiff appealed. The grounds of the petition for a new trial are in denial of the plaintiff's right to recover, alleging a defense to the action. It is also averred that the defendant had no notice of the trial and was not represented on that occasion. But, with ordinary diligence the defendant...
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