Lance v. Bonnell

• Decision Date: 04 February 1884
• Citation: 105 Pa. 46
• Parties: Lance <I>versus</I> Bonnell.
• Court: Pennsylvania Supreme Court

Page 46

105 Pa. 46

Lance versus Bonnell.

Supreme Court of Pennsylvania.

January 14, 1884.

February 4, 1884.

January 14th, 1884.

Before MERCUR, C. J., GORDON, PAXSON, TRUNKEY, STERRETT, GREEN and CLARK, JJ.

ERROR to the Court of Common Pleas No. 2, of Philadelphia county: Of July Term, 1883, No. 8.

David C. Harrington (Silas W. Pettit with him), for the plaintiff in error.

George R. Van Dusen and William Ernst for the defendant in error.

Mr. Justice CLARK delivered the opinion of the court, February 4th, 1884.

It is certainly true that the granting of a new trial is a matter for the exercise of a sound discretion merely, and is not reviewable here on a writ of error. There is, however, a just limitation to this remedy; the power of the court is annulled when the day for discretion is past. The case before us does not present the question whether or not there was error in the discharge of a proper discretionary function, but whether or not the court, at the time, in this form, possessed any discretionary power in the matter before it. It is contended that the action of the court was unauthorized, and the question of power is, of course, reviewable here.

The rule of practice in the court below required that the motion for a new trial should be submitted within four days from the rendition of the verdict, and until after the expiration of that time judgment could not be entered. It must be conceded, however, that it was competent for the court, upon a proper showing, to waive the limitation imposed by its own rule of practice. The allowance of the motion on the 20th November, 1882, as of the 21st of October, 1882, which was the date of the rendition of the verdict, nunc pro tunc, simply dispensed with or waived the restriction of the rule. It is true that a judgment had been regularly entered upon the verdict, but, as the term had not yet expired, the judgment was as much under the control of the court as the verdict; the whole term, excepting for the rules of practice, is considered as but one day, and the judges may, at any time within the term, revise its judgments; the record is incomplete until the term is ended. Catlin v. Robinson, 2 Watts, 379; Mathers v. Patterson, 9 Casey, 485; Breden v. Gilliland, 17 P. F. S., 37; King v. Brooks, 22 P. F. S., 363; Commonwealth v. Mayloy, 7 P. F. S., 291.

If then it was competent for the court to entertain the motion, nunc pro tunc, the effect of that motion, when made, it must be conceded, is precisely the same as if made at the proper time. This was the import and purpose of the motion, and the court certainly could not have intended that it should have other than that effect. It was equivalent to an amendment of the record, and must be so considered. The motion having been made within the term, no objection can be made that it was not finally disposed of until a subsequent term.

Assuming therefore, that the motion for the new trial must be taken as made at the rendition of the verdict, it follows necessarily that the judgment, although at the first regularly entered, was liable to be set aside, as a judgment may be set aside which was improvidently entered after a motion regularly made. A judgment, being the sentence of the law, pronounced upon the matter contained in the record, can only be set aside for matters appearing therein; but the motion for a new trial and the action of the court thereon, were matters of record, and, therefore, it was clearly within the power of...