Opinion
December 2, 1935.
January 6, 1936.
Appeals — Refusal to open judgment — Prior appeal — Act of May 20, 1891, P. L. 101.
A party aggrieved by a judgment obtained in an adverse proceeding, which, assuming it to be erroneous, is not void, and whose appeal from the entry of such judgment is quashed because taken too late, is not entitled, under the Act of May 20, 1891, P. L. 101, to again appeal, after a subsequent refusal to open the judgment.
Argued December 2, 1935.
Before FRAZER, C. J., SCHAFFER, MAXEY, DREW, LINN and BARNES, JJ.
Appeal, No. 352, Jan. T., 1935, by defendant, from judgment of C. P. No. 2, Phila. Co., Sept. T., 1931, No. 3418, in case of Edward H. Friel v. William U. Beadle. Appeal is quashed.
Petition to open judgment.
The opinion of the Supreme Court states the facts.
Petition refused, opinion per curiam. Defendant appealed.
Error assigned, among others, was refusal of petition.
Robert P. Shick, for appellant.
William T. Connor, with him John R. K. Scott, for appellee.
This appeal is from the refusal to open judgment entered for want of a sufficient affidavit of defense in an action of assumpsit. An appeal from the judgment was quashed by this court on the ground that it was taken after the time allowed by the statute. Five months after the record was returned to the court below, the defendant filed a petition to open, alleging that, notwithstanding the judgment, his affidavit of defense was sufficient and had been misconstrued by the learned court below. No facts to support a holding that the judgment was void appeared. The only purpose of the motion to open was to obtain reconsideration of what the court had already decided at a prior term, and which this court was unable to consider for the reason stated. When his application to open was refused, he took this appeal to obtain a review of the decision which we were unable to review before. To support his right to this appeal, he relies on the Act of May 20, 1891, P. L. 101, 12 P. S., section 1100. It is settled that the act does not and was not intended "to give a party aggrieved by a judgment obtained in an adverse proceeding, which at the worst is only erroneous and not void, two opportunities to obtain a reversal": Mayer v. Brimmer, 15 Pa. Super. 451, 454; American Soda Water Co. v. Taggart, 46 Pa. Super. 123; In re Inter-County Bridge, 82 Pa. Super. 59.
The appeal is quashed.