Kelber v. Pittsb. N. Plow Co.

Alleghany County Court of Common Pleas

Kelber v. Pittsb. N. Plow Co.

23 A. 335, 146 Pa. 485, 1892 Pa. LEXIS 1253

CourtPennsylvania Court of Common Pleas, Alleghany County

DecidedJanuary 4, 1892

DocketNo. 202

StatusPublished

Cited by36 cases

This text of 23 A. 335 (Kelber v. Pittsb. N. Plow Co.) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Alleghany County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kelber v. Pittsb. N. Plow Co., 23 A. 335, 146 Pa. 485, 1892 Pa. LEXIS 1253 (Pa. Super. Ct. 1892).

Pincite

Opinion

Per Curiam:

It is assigned for error that the court below erred in opening the judgment, and also that “ it should at least have imposed terms upon defendant when the judgment was ordered to be opened.”

It is very clear that prior to the passage of the act of May 20, 1891, P. L. 101, no appeal would lie to the order of the court opening this judgment: Lyon v. Phillips, 106 Pa. 57; Gibson v. Simmons, 134 Pa. 189. The first section of that act provides :

“ That in all cases of application for the opening, vacating and striking off judgments of any kind, whether entered by amicable confession, upon warrant of attorney or otherwise, any party aggrieved by the decision of the court opening, vacating or striking off, or the refusal to open, vacate or strike off such judgment, may appeal therefrom to the Supreme Court of this commonwealth, and such cause shall thereupon be heard, reviewed and decided upon such appeal by the Supreme Court, in like manner as appeals from final decrees to the said Supreme Court.”

The judgment below was entered by default for want of an appearance. We think it comes within the act of 1891, and that the appeal was lawfully taken. The act in question, with the prior act of April 4, 1877, P. L. 53, have made a radical change, so far as the right of appeal is concerned. What was [491]*491formerly an absolute discretion in tbe court below is now reviewable here. To what extent is it reviewable ? The answer to this question will be found in Jenkintown N. Bank’s App., 124 Pa. 887, where it was said, in speaking of the act of 1877: “ Prior to the act of 1877, as before observed, the opening of a judgment rested in the discretion of the court below, and no appeal was allowed to this court. It by no means follows, however, that the discretion formerly vested in the Common Pleas in regard to opening judgments, has been taken away by the act of 1877. Upon appeal to this court we only decide whether the discretion has been properly exercised.” To the same point are Earley’s App., 90 Pa. 321; Wernet’s App., 91 Pa. 319; Kneedler’s App., 92 Pa. 428; Wise’s App., 99 Pa. 193. It is true, these cases refer to the act of 1877, but they are equally applicable to the act of 1891. All of them conclusively show that an application to open a judgment, under either of the acts aforesaid, is an equitable proceeding addressed to the discretion of the court, and is to be disposed of in accordance with the principles of equity. “ The judge to whom the application is made acts as a chancellor, and upon appeal, this court will only see that his discretion has been properly exercised:” Jenkintown N. Bank’s Appeal, supra.

An examination of this case fails to show that the discretion of the court below was improperly exercised. The judgment was taken by default against a defunct corporation, whose business was practically wound up and most of the incorporators dead. It is true, the sheriff returned a service upon “ James I. Bennett, president; ” but Mr. Bennett swears he was not the president, and that he had no knowledge of the suit or the service. The judgment was entered for ten years’ services of the plaintiff, a considerable portion of which was barred by the statute of limitations. It is true, there was considerable delay in making the application to open the judgment, but this is faii'ly accounted for. No terms were imposed by the court below, but that was a matter peculiarly in the discretion of the court, and it would require a very strong case, much stronger than this, to move us to interfere. We think the order made by the learned judge was fully justified by the facts, and it is accordingly

Affirmed.

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Per Curiam:

It is assigned for error that the court below erred in opening the judgment, and also that “ it should at least have imposed terms upon defendant when the judgment was ordered to be opened.”

It is very clear that prior to the passage of the act of May 20, 1891, P. L. 101, no appeal would lie to the order of the court opening this judgment: Lyon v. Phillips, 106 Pa. 57; Gibson v. Simmons, 134 Pa. 189. The first section of that act provides :

“ That in all cases of application for the opening, vacating and striking off judgments of any kind, whether entered by amicable confession, upon warrant of attorney or otherwise, any party aggrieved by the decision of the court opening, vacating or striking off, or the refusal to open, vacate or strike off such judgment, may appeal therefrom to the Supreme Court of this commonwealth, and such cause shall thereupon be heard, reviewed and decided upon such appeal by the Supreme Court, in like manner as appeals from final decrees to the said Supreme Court.”

The judgment below was entered by default for want of an appearance. We think it comes within the act of 1891, and that the appeal was lawfully taken. The act in question, with the prior act of April 4, 1877, P. L. 53, have made a radical change, so far as the right of appeal is concerned. What was [491]*491formerly an absolute discretion in tbe court below is now reviewable here. To what extent is it reviewable ? The answer to this question will be found in Jenkintown N. Bank’s App., 124 Pa. 887, where it was said, in speaking of the act of 1877: “ Prior to the act of 1877, as before observed, the opening of a judgment rested in the discretion of the court below, and no appeal was allowed to this court. It by no means follows, however, that the discretion formerly vested in the Common Pleas in regard to opening judgments, has been taken away by the act of 1877. Upon appeal to this court we only decide whether the discretion has been properly exercised.” To the same point are Earley’s App., 90 Pa. 321; Wernet’s App., 91 Pa. 319; Kneedler’s App., 92 Pa. 428; Wise’s App., 99 Pa. 193. It is true, these cases refer to the act of 1877, but they are equally applicable to the act of 1891. All of them conclusively show that an application to open a judgment, under either of the acts aforesaid, is an equitable proceeding addressed to the discretion of the court, and is to be disposed of in accordance with the principles of equity. “ The judge to whom the application is made acts as a chancellor, and upon appeal, this court will only see that his discretion has been properly exercised:” Jenkintown N. Bank’s Appeal, supra.

An examination of this case fails to show that the discretion of the court below was improperly exercised. The judgment was taken by default against a defunct corporation, whose business was practically wound up and most of the incorporators dead. It is true, the sheriff returned a service upon “ James I. Bennett, president; ” but Mr. Bennett swears he was not the president, and that he had no knowledge of the suit or the service. The judgment was entered for ten years’ services of the plaintiff, a considerable portion of which was barred by the statute of limitations. It is true, there was considerable delay in making the application to open the judgment, but this is faii'ly accounted for. No terms were imposed by the court below, but that was a matter peculiarly in the discretion of the court, and it would require a very strong case, much stronger than this, to move us to interfere. We think the order made by the learned judge was fully justified by the facts, and it is accordingly

Affirmed.

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Bluebook (online)

23 A. 335, 146 Pa. 485, 1892 Pa. LEXIS 1253, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kelber-v-pittsb-n-plow-co-pactcomplallegh-1892.

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