Opinion
October 16, 1930.
December 12, 1930.
Judgment — Rule to open after expiration of term — Case for equitable interference.
On a rule to open a judgment, the record disclosed that the plaintiff as the result of the trial, at which neither the defendants nor their counsel were present, obtained a judgment in his favor. After the term expired at which the judgment was entered, the defendants petitioned the court below to open the judgment and for permission to file a motion for a new trial. They alleged that their counsel of record because of illness was prevented from appearing for them in court and that they had no actual notice of the trial or judgment prior to the issuing of execution on the judgment. The plaintiff neither averred nor proved that the defendants had such notice.
In such circumstances, a case calling for equitable interference is made out and the order making absolute the rule to open the judgment and permit the filing of a motion for a new trial will be affirmed.
If a case calling for equitable interference is made out, the ending of the term at which the judgment is entered will not necessarily preclude relief.
Appeal No. 238, October T., 1930, by plaintiff from order of M.C., Philadelphia County, November T., 1928, No. 886, in the case of Julius Lichterman v. William Hanlon and Anna F. Hanlon, his wife.
Before TREXLER, P.J., KELLER, LINN, GAWTHROP, CUNNINGHAM, BALDRIGE and WHITMORE, JJ. Affirmed.
Assumpsit for merchandise sold and delivered. Before GLASS, J.
Rule to open judgment and for permission to file a motion for a new trial.
The facts are stated in the opinion of the Superior Court.
The court made absolute the rule. Plaintiff appealed.
Error assigned, among others, was the order of the court.
George J. Segal, for appellant.
J. Henry Bryan, for appellee.
Argued October 16, 1930.
Appellant was plaintiff below in an action of assumpsit for merchandise sold and delivered to appellees and as the result of a trial, at which neither they nor their counsel were present, obtained a judgment in his favor. This appeal is from an order making absolute a rule — obtained after the expiration of the term — to open the judgment and permit appellees to file, nunc pro tunc, a motion for a new trial.
The case was at issue upon statement of claim, affidavit of defense, counter-claim and reply thereto, but when it was set down for trial appellees' counsel of record was suffering from an illness which continued until after the judgment had been entered. Several continuances were arranged for by an office associate and notice was given him one afternoon that the case would be disposed of on the following day; there was, however, neither averment nor proof that appellees had actual notice of the trial or of the judgment prior to the issuing of an execution thereon.
Counsel for appellant invokes the strict common law rule against opening an adverse judgment after the expiration of the term. But it clearly appears in the following excerpt from the opinion of the court below that it treated this judgment as one entered by default and was exercising its equitable powers in granting the relief sought: "We are of the opinion and feel that the proper administration and the interests of justice demand that the judgment be opened so that the defendants, who were not in default, may be given an opportunity to have their day in court; especially so, because their attorney, through circumstances over which he had no control, to wit, illness, was prevented from appearing for them in court, or looking after his clients' legal affairs. This case having been tried ex parte, and the judgment having been entered upon the finding for the plaintiff, it [may] be treated not as an adverse judgment, but as `won by default.'" We think the case comes within the rule referred to in Pennsylvania Stave Company's Appeal, 225 Pa. 178, at 181, that, if a case calling for equitable interference is made out, "the ending of the term would not necessarily preclude relief."
Order affirmed.