Rome Sales & Service v. Finch

• Decision Date: 31 January 1936
• Docket Number: 173-1934
• Citation: 120 Pa.Super. 402,183 A. 54
• Parties: Rome Sales and Service Station v. Finch, Appellant
• Court: Pennsylvania Superior Court

183 A. 54

120 Pa.Super. 402

Rome Sales and Service Station v. Finch, Appellant

No. 173-1934

Superior Court of Pennsylvania

January 31, 1936

Argued November 18, 1935

Appeal by defendant, from decree of C. P., Bradford Co., Dec. T 1932, No. 44, in case of Rome Sales & Service Station v Walter Finch.

Petition to open judgment.

The facts are stated in the opinion of the Superior Court.

Petition refused, opinion by Culver, P. J. Defendant appealed.

Error assigned, among others, was refusal of petition.

Reversed.

John P. Vallilee, of Schrier & Vallilee, for appellant.

Romeyn F. Culver, for appellee.

Before Keller, P. J., Baldrige, Stadtfeld, Parker, James and Rhodes, JJ.

OPINION

Keller, P. J.

When this case was here before -- 111 Pa.Super. 226, 169 A. 476, -- we said, in affirming the order of the court below refusing to strike off the judgment: "If the defendant has any meritorious defense to the judgment, the same can be disposed of on a petition to open the judgment."

Shortly after the record was remitted to the court below the defendant presented a petition asking that the judgment be opened on the grounds, inter alia, that prior to the entry of the judgment the plaintiff, H. W. Dimon, trading as Rome Sales & Service Station, had sold and assigned all his right, title and interest in and to the lease, and the motor truck covered by it, to General Motors Acceptance Corporation and had no legal interest in the lease or truck on September 12, 1932 when the judgment was entered; and that pursuant to demands made upon defendant by said General Motors Acceptance Corporation, the then owner of said lease and of the motor truck subject to said lease, defendant had delivered said motor truck to General Motors Acceptance Corporation, or its nominee, and the same had been sold by it or the plaintiff acting for it.

The court below refused to grant a rule to open the judgment on the ground that the application was too late; that after moving to strike off the judgment for alleged invalidity apparent on its face, which proved unsuccessful, the defendant could not move to open the judgment and defend on the merits. The law is otherwise. "Every court has power to open a judgment in order to give the parties a hearing or trial. In the case of judgments by confession or default there is no limit of time to the exercise of this power." King v. Brooks, 72 Pa. 363, 364 (Sharswood, J.); Hill v. Egan, 2 Pa.Super. 596, 598. The distinction between a rule to strike off judgment and a rule to open judgment is well expressed in Mitchell on Motions and Rules ^[1] (pp. 75-77) as follows: "The rule to strike off judgment is essentially a common-law proceeding, a short and summary substitute for an audita querela, a writ of error coram vobis, or a certiorari or writ of error from a superior court, by which the same relief was formerly administered. Being for irregularity apparent on the face of the proceedings, it is in the nature of a demurrer to the record, and is not confined to any particular kind of judgments, nor limited as to the time it may be taken advantage of, nor affected by matters dehors the record, except so far as defendant may have put himself in position to be estopped from making the objection . . . . The rule to open judgment and let defendant into a defence is peculiar to Pennsylvania practice, and is a clear example of our system of administering equity under common-law forms. By long practice and common understanding it is confined to judgments by default, and those entered on warrants of attorney to confess, etc. It was, however, invented in the absence of a court of chancery, as a substitute for a bill in equity to enjoin proceedings at law . . . . There is no limit as to the time at which judgment [by confession] may be opened upon a rule . . . . Delay amounting to laches will, however, bar the party applying in this as in other cases of equitable relief . . . . The grounds upon which the rule is founded are, of course, as varied as those of bills in equity, and as in equity, each case must stand upon its own peculiar merits." Since the Act of April 4, 1877, P. L. 53, the appellate courts have authority to review a decision of the court of common pleas opening or refusing to open a judgment entered by warrant of attorney.

Bearing in mind that a rule to strike off judgment is in the nature of a demurrer to the record, (North & Co. v. Yorke, 174 Pa. 349, 351, 34 A. 620), while a rule to open judgment is a substitute for a bill in equity (Lawrence v. Smith, 215 Pa. 534, 536, 64 A. 776; O'Hara v. Baum, 82 Pa. 416, 420; Fisher v. Hestonville, &c. Ry. Co., 185 Pa. 602, 604, 40 A. 97; Hall v. West Chester Pub. Co., 180 Pa. 561, 565, 37 A. 106) we can see the reason for the converse of the rule applied by the court below, viz., that one who moves to open a judgment and be let into a defense on the merits will be held to have waived irregularities in the entry of the judgment, which might have been attacked by a motion to strike off: Modern Home Heating Co. v. Diehl, 92 Pa.Super. 571, 574; Breden v. Gilliland, 67 Pa. 34, 37; Post v. Wallace, 110 Pa. 121, 125, 20 A. 409; Hays v. Com., 14 Pa. 39, 41; Phila. v. Adams, 15 Pa.Super. 483, 486; Borough of Jeannette v. Roehme, 9 Pa.Super. 33, 38, affirmed 197 Pa. 230, 47 A. 283. It is in accord with the rule in litigated cases that a demurrer cannot be filed after plea entered on the merits, and that one who appears and defends cannot afterwards question the validity of the service of process on him: Altoona Trust Co. v. Fockler, 311 Pa. 426, 435, 165 A. 740. But there is no sound reason for holding that a defendant who moves to strike off a judgment for irregularity on the face of the record is thereafter precluded from defending on the merits if his attack on the regularity of the judgment is unsuccessful.

In Williams v. Notopolos, 247 Pa. 554, 559, 93 A. 610, the Supreme Court reversed an order making absolute a rule to strike off a judgment, and of its own accord made absolute a rule to open the judgment. It is true that in that case the defendant had moved the court below (1) to strike off the judgment, and, in the alternative, (2) to open the judgment, as is frequently done (See Bennett v. Haley, 142 Pa. 253, 255, 21 A. 814); but it is not essential that the defendant include both motions in one petition. In Bowman v. Berkey, 259 Pa. 327, 103 A. 49, the defendant first obtained a rule to strike off the judgment and when that was dismissed moved to open the judgment, which was done, and the Supreme Court, in affirming the lower court, said, speaking through Mr. Justice Frazer -- afterwards Chief Justice -- "There is no merit in the contention that the petition to open was res...