Stein v. Kessler

• Citation: 92 Pa.Super. 359
• Decision Date: 02 March 1928
• Docket Number: 204-1927
• Parties: Stein et al., Appellants, v. Kessler et al
• Court: Superior Court of Pennsylvania

92 Pa.Super. 359

Stein et al., Appellants, v. Kessler et al

No. 204-1927

Superior Court of Pennsylvania

March 2, 1928

Argued October 21, 1927

Appeal by plaintiff from order of M. C. Philadelphia County-1920 No. 205, in the case of Nathan Stein, trading as Stein Woolen Company, to use of Adolph Rusch and Henry A. Rusch, trading as Rusch & Company, v. Joseph Kessler, trading as The Parisian Tailoring Company.

Rule to open judgment. Before Glass, P. J., Lewis and Knowles, JJ sitting en banc.

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

The court opened the judgment and granted a new trial. Knowles J., dissenting. Plaintiff appealed.

Error assigned, among others, was opening the judgment.

Affirmed.

Sigmund H. Steinberg, of Wolf, Block, Schorb and Solis-Cohen, for appellants. -- A trial judge cannot open judgment after the term: Miller v. Baker, 64 Pa.Super. 124; Pennsylvania Stave Co.'s Appeal, 225 Pa. 178; Hill v. Egan, 2 Pa.Super. 596; Lance v. Bonnell, 105 Pa. 46; Fisher v. Hestonville Railway Company, 185 Pa. 602; Wickel v. Mertz, 49 Pa.Super. 472; Oil Company v. Carothers, 63 Pa. 379.

Louis W. Levinthal, of Levinthal, Schofield and Kraus, for appellee. -- The rule of court that judgment cannot be opened after the end of the term in which it was entered has no application: Smith v. Smith, 49 Pa.Super. 423; Fisher v. Fisher, 74 Pa.Super. 538; Donoghue v. O'Kane, 55 Pa.Super. 11; Todd v. Insurance Company, 9 Pa.Super. 371; Magill's Appeal, 56 Pa. 430.

Before Porter, P. J., Henderson, Trexler, Keller, Linn, Gawthrop and Cunningham, JJ.

OPINION

TREXLER, J.

This suit in assumpsit was tried in the Municipal Court. Judge Knowles, the trial judge, directed a verdict for the plaintiff. Within the time fixed by the rules of the Municipal Court, the defendant filed a motion for a new trial which after a number of extensions of time, was dismissed on February 16, 1927, by the trial judge and Judge Glass, sitting as a court en banc, the third member of the court, Judge Lewis, not participating. On February 16, 1927, judgment was entered on the verdict. On February 17th, a petition for oral re-argument was presented to Judge Lewis and allowed, with a stay of proceedings. Thereafter, all three judges, sitting in banc heard the oral re-argument and during the third term of court after judgment was entered, on April 28, 1927, the court (Judge Knowles dissenting) revoked the previous order of February 10, 1927, dismissing the motion for a new trial and opened the judgment and granted a new trial. From this order the plaintiff has appealed.

The first objection urged is that the court had no jurisdiction to grant the motion. The power of the court to open adverse judgment ends with the term, but in this proceeding, it will be observed that the judgment was entered on February 16th and within the term, on February 17th, the judge ordered an oral re-argument, all proceedings to stay. The appellant, however, argues that this was not sufficient to suspend the finality of the judgment at the end of the term, that the only way to do that was by entering a rule to show cause. This seems to be only a question as to the use of terms. The petition for a re-argument stated the reasons why the equitable powers of the court were invoked and the reasons were thus brought on the record. The court, in its order, has definitely expressed the thought that the judgment should remain within its control. The order suspending all proceedings was ample evidence of that and the court being still within the term could leave the way open for further action in regard to the judgment. The order, having been made within the term, no objection can be made that it was not disposed of until a subsequent term. Lance v. Bonnell, 105 Pa. 46. Whether a rule to show cause was employed or action taken upon the petition, does not alter the situation.

Judge Knowles, in his dissenting opinion, relied upon the case of Pennsylvania Stave Company's Appeal, 225 Pa 178, 73 A. 1107. It was there held in a tax case that the common-law power of the court to set aside a judgment regular on its face ended with the term, even though a petition for its vacation was presented on the last day of the term in which the original order had been made, but the basis for the conclusion of the lower court was that there was nothing in the case calling for equitable interference. If there had been, the court states that in a case of...