Syracuse Pit Hole Oil Co. v. Carothers

• Decision Date: 26 November 1869
• Citation: 63 Pa. 379
• Parties: Syracuse Pit Hole Oil Company <I>versus</I> Carothers.
• Court: Pennsylvania Supreme Court

Page 379

63 Pa. 379

Syracuse Pit Hole Oil Company versus Carothers.

Supreme Court of Pennsylvania.

November 22, 1869.

November 26, 1869.

November 22d 1869.

Before THOMPSON, C. J., READ, AGNEW, SHARSWOOD and WILLIAMS, JJ.

Error to the Court of Common Pleas of Venango county: No. 138, to October and November Term 1868. A. Blakely, for plaintiff in error.—The court being divided when the argument was heard and the opinion of the president judge delivered, the rule was necessarily discharged: Lanning v. Brown, 4 W. C. C. R. 332. The dissenting associate could not hold the decision. The motion for a new trial was too late: Burrell v. Du Bois, 2 Dallas 229; Lane v. Shreiner, 1 Binney 292. An order which may injure a party is the subject of a writ of error: Adams v. Rush, 5 Watts 289. The grant of a new trial did not vacate the judgment nor set aside the verdict, and the plaintiffs cannot therefore go on to trial nor can they issue execution because a new trial has been granted: Huston v. Mitchell, 14 S. & R. 307.

J. K. Kerr, for defendant in error.

The opinion was delivered November 26th 1869. PER CURIAM.

It is seldom we have seen anything so disorderly and erroneous as the proceedings in this case are shown by the record to be. Four months after verdict and judgment thereon, a rule to show cause why a new trial should not be granted was entertained by the associate judges. Two months thereafter this motion was argued before the president and one associate. The motion fell by a divided court. Afterwards, however, by paper filed, the associates granted a new trial. One of the judges, it would appear, never heard the argument. Be that as it may, no such motion could be made or granted so long after trial and verdict. Nor could it be done, with a judgment standing in full force, under any conceivable circumstances. It was a step in the wrong direction for associates to interfere in a matter of this kind, and it is to be hoped that the example will not be followed. If such a proceeding could be tolerated litigation would but begin where it ought to end, with the judgment. The order granting a new trial is reversed and set aside, and the motion to quash this writ of error is overruled. Let this entry be made and the record remitted, to be proceeded in according to law.