Opinion
October 5, 1936.
October 7, 1936.
Practice — New trial — Appeals — Order of appellate court directing entry of judgment — Reinstatement of rule for new trial.
Where, on appeal from judgment n. o. v., the appellate court reverses the judgment and directs that judgment be entered on the verdict, the lower court has no authority thereafter to reinstate a motion for a new trial, even though that motion was discharged only because the motion for judgment n. o. v. was granted.
Before KEPHART, C. J., SCHAFFER, MAXEY, DREW, LINN, STERN and BARNES, JJ.
Appeals, Nos. 280 and 281, March T., 1936, by defendant, from order of C. P. Butler Co., Sept. T., 1931, No. 114, in case of P. F. Conerty v. Lewis P. Litzinger. Order affirmed.
Petition to reinstate motion for new trial.
The facts are stated in the opinion of the lower court, by GRAFF, P. J., specially presiding, as follows:
This matter comes before us upon a petition for an order to reinstate a motion for a new trial.
Upon trial of this case the jury returned a verdict in favor of the plaintiff. Thereafter judgment notwithstanding the verdict was entered, in favor of the defendant. Upon appeal to the Supreme Court that tribunal reversed the judgment of the lower court, in the following language:
"The judgment is reversed, and it is directed that the Court below enter judgment on the verdict in the plaintiff's favor."
A motion for a new trial was made by the defendant, and argued at the same time as the motion for judgment n. o. v. The following order was made on this motion:
"And now, October 22, 1935, for the reason that the motion for judgment notwithstanding the verdict has been granted, the rule for a new trial is discharged."
Upon presentation of the petition now under consideration it appears that the defendant petitioned the Supreme Court to reinstate the rule for a new trial, and that this petition was refused. It is clear by reason of the order of the Supreme Court no authority whatsoever exists in this Court to entertain the petition now before us. Obviously the rule for a new trial was discharged, as a matter of form, and the record discloses some sixteen reasons filed in support of said motion. The only tribunal which can grant the defendant any relief is the Supreme Court. In the case of Sloan v. Phila. Reading Ry. Co., 235 Pa. 155, entirely similar to the one now under consideration, that Court modified its judgment and remitted the record "with directions to the Court below to enter such judgment as law and right require." However, it is clear that this petition must be dismissed.
Petition dismissed. Defendant, petitioner, appealed.
Error assigned, among others, was dismissal of petition.
Joseph A. Beck, with him Carmen Marinaro and B. A. Sciotto, for appellant.
J. Campbell Brandon, of Brandon Brandon, with him Cobau Berry, for appellee.
Argued October 5, 1936.
Affirmed on the order of the court below.
Costs to be paid by appellant.