Home Bldg. & Loan Ass'n v. Houlihan

• Decision Date: 13 February 1953
• Citation: 95 A.2d 189,373 Pa. 43
• Parties: HOME BLDG. & LOAN ASS'N v. HOULIHAN.
• Court: Pennsylvania Supreme Court

95 A.2d 189

373 Pa. 43

HOME BLDG. & LOAN ASS'N v. HOULIHAN.

Supreme Court of Pennsylvania.

February 13, 1953

Rehearing Denied March 24, 1953.

Proceeding involving bond secured by mortgage given by defendant to plaintiff. The Court of Common Pleas No. 7, of the County of Philadelphia, L. Stauffer Oliver, P. J entered order opening judgment, as of December Term, 1950 No. 1440, and thereafter entered order revoking and striking previous order from record, and defendant appealed from latter order. The Supreme Court, No. 139, January Term, 1952 Chidsey, J., held that although no appeal was taken from reviewable order of lower court opening judgment, such court could, nevertheless, on petition over six months after entry of order, revoke and strike order from record, permit execution to issue and impose costs.

Order affirmed.

Gilbert Cassidy, Jr., Philadelphia, for appellant.

A. Walling Levin, Philadelphia, for appellee.

Before STERN, C. J., and STEARNE, JONES, BELL, CHIDSEY and MUSMANNO, JJ.

CHIDSEY, Justice.

This is an appeal from a final order of the common pleas court revoking the opening of a judgment.

On December 20, 1950 the appellee, Home Building and Loan Association, entered judgment against appellant, Vincent J. Houlihan, by virtue of a warrant of attorney contained in a bond secured by a mortgage given by Houlihan to the Association. Houlihan petitioned to open the judgment. After answer by the Association and the taking of depositions, the lower court made an order on May 7, 1951 opening the judgment. On November 8, 1951, upon the Association's petition, the court issued a rule upon Houlihan ‘ to show cause why the order previously entered in this case opening the judgment and staying all proceedings should not be revoked and the plaintiff given leave to proceed with execution, or in the alternative why the court should not amend its order opening the judgment by incorporating therein a statement of the issues to be submitted to the jury.’ After answer filed by Houlihan and argument, the court on January 4, 1952 made the following final order: ‘ Rule absolute; former Order of Court opening judgment revoked and stricken from record. Rule to open Judgment dismissed. Plaintiff granted leave to proceed with execution. Defendant to pay costs.’

Appellant does not question the propriety of the lower court's decision on the merits but challenges only the power and authority of the lower court to vacate its earlier order opening the judgment. His Statement of Question Involved is: ‘ Where no appeal was taken from a reviewable order of a lower Court opening judgment, which Court had jurisdiction, may such Court, on petition over six months after the entry of its order, revoke and strike the order from record, permit execution to issue and impose costs?’

While an appeal lies from an order opening a judgment, Act of May 20, 1891, P.L. 101, Section 1, 12 P.S. § 1100, an appeal at that stage of the proceeding is at the option of the party aggrieved and he may wait until a final order is entered and appeal from the latter. If no appeal is taken under the Act of 1891, the order opening the judgment remains interlocutory and may be subsequently amended, modified or revoked: See Shomaker v. Dean, 201 Pa. 439, 50 A 923; Rosenblum v. Edwards, 137 Pa.Super. 33, 8 A.2d 468. In Markofski v. Yanks, 297 Pa. 74, at page 77, 146 A. 569, at page 570, where the judgment debtor appealed from an order by the court below amending an earlier order opening judgment, this court said: ‘ We find no error in the order appealed from. The commonlaw rule that a court cannot change its judgment after the term at which it was entered applies only to a final judgment and is inapplicable to interlocutory orders such as here in question.‘ The rule against amending or vacating a judgment after expiration of the term at which it was rendered has no application to interlocutory judgments, and such judgments may be opened, amended, or vacated at any time while the proceedings remain in fieri, and before the final judgment’ . 34 C.J. 216, citing numerous authorities, including McCoy v. Porter, 17 Serg. & R. 59. The same is stated in 15 R.C.L. p. 692, § 144, as follows: ‘ The general rule * * * denying to a court the...