Meskill v. Firemen's Pension Fund

Superior Court of Pennsylvania

Meskill v. Firemen's Pension Fund

76 Pa. Super. 280, 1921 Pa. Super. LEXIS 135

CourtSuperior Court of Pennsylvania

DecidedMarch 5, 1921

DocketAppeal, No. 354

StatusPublished

This text of 76 Pa. Super. 280 (Meskill v. Firemen's Pension Fund) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Meskill v. Firemen's Pension Fund, 76 Pa. Super. 280, 1921 Pa. Super. LEXIS 135 (Pa. Ct. App. 1921).

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Opinion

Opinion by

Linn, J.,

It is necessary to consider only the motion to quash. The appeal is from judgment for want of a sufficient affidavit of defense. Appellee says the appeal is too late. Appellant suggests it is premature and for that reason may be quashed. Section 17 of the Practice Act of 1915, P. L. 483, provides: w.The plaintiff may take a rule for judgment for want of a sufficient affidavit of defense to. the whole or any part of his claim, and the court shall enter judgment or discharge the rule, as [282]*282justice may require.” Plaintiff took a rule for judgment for want of a sufficient affidavit of defense, and, after due consideration it was disposed of by tbe learned court below by entering upon tbe record of tbe case “May 17, 1920 Rule absolute”; an opinion stating tbe basis of this action was filed, concluding “For these reasons.we have entered judgment for tbe plaintiff for tbe installment of pension sued upon.”

This appeal was not taken until November 22, 1920, more than six months after tbe action of tbe court of May 17th and therefore too late, if by that action tbe court shall have entered judgment within tbe meaning of section 17. If tbe court has not entered judgment, tbe appeal is premature.

Judgment is tbe sentence of tbe law pronounced by tbe court upon tbe matter contained in tbe record: 3 Blk. 395. Did tbe court enter judgment? What is meant by tbe entry “May 17, 1920 rule absolute” in tbe circumstances of this case? We have quoted from its opinion, what tbe court intended it to mean. Usage may determine the meaning or meanings of words or phrases. Is there any good reason why we should not understand tbe words in tbe sense intended by tbe learned court? If it appear that it has been common practice for courts to enter judgment for want of a sufficient affidavit of defense by tbe short entry in question we must accept it. For many years in tbe Common Pleas of Philadelphia, tbe words in question have been interpreted as tbe entry of judgment. On appeal they have been so considered, as any cursory examination of recent State reports will show. In Faux v. Fitler, 223 Pa. 568, “rule absolute” was treated as tbe entry of judgment, — tbe Supreme Court saying, “Tbe court below entered judgment.” In Wood v. Kerkeslager, 227 Pa. 536, on appeal from a like order, it was said: “A rule was thereupon again taken for judgment for want of a sufficient affidavit of defense, and, having been made absolute, we now have tbe appeal of tbe defendants.” Norris v. Breakwater [283]*283Co., 231 Pa. 163, is another instance. Though different phraseology on this subject is employed in the Practice Act from that contained in the Act of 1887, the same effect seems to be attributed to the entry since the Practice Act became effective, for in Permutit Co. v. Wallace, 264 Pa. 9, the appeal was “from the action of the court below mating absolute a rule for judgment for want of a sufficient affidavit.” See also Wayne Title, etc., Co. v. Treat, and Chatham, etc., Bank v. Tull, decided February 14, 1921. The late Judge Ralston who helped draft the statute apparently was of opinion that no change was made in this regard: 72 Leg. Int. 815, col. 3.

In Pierson v. Krause, 208 Pa. 115, where the court below expressed its judgment on a rule for judgment for the amount as to which the affidavit of defense was insufficient, by “rule absolute for $2,907.57,” the Supreme Court returned the record so that the court might adjudge “specifically the portion or portions of the affidavit of defense which it deems insufficient as to the portion of the claim for which judgment is asked.” It was not suggested that the judgment was bad because of the short entry. In Smucker v. Grinberg, 27 Pa. Superior Ct. 531, one of the assignments of error was “Because the learned court did not file an opinion and gave judgment by the simple entry ‘rule absolute.’ ” It was not suggested that judgment had not been entered, and President Judge Rice said, page 537: “The making absolute of the rule to show cause necessarily implied an adjudication that the portion of the affidavit of defense relative to that claim was insufficient in law.” See to the same general effect Moore v. Eyre, 32 Pa. Superior Ct. 259; Lance v. Bonnell, 105 Pa. 46, 48; Fisher v. Railway Co., 185 Pa. 602, 605.

In some counties we understand the rules of court require that notwithstanding the short entry “rule absolute,” an order to the prothonotary to enter judgment formally is necessary. Perhaps that is the better prac[284]*284tice. But in view of the well established local usage as to the legal effect of the entry rule absolute, as has been indicated, and in view of the consequences that might follow a decision that judgments so entered and acted upon since the Practice Act became effective were not judgments at all, we must hold that this record shows that a final judgment, from which an appeal will lie, was entered on May 17,1920, and that this appeal is too late.

The motion is granted and the appeal is quashed.

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Opinion by

Linn, J.,

It is necessary to consider only the motion to quash. The appeal is from judgment for want of a sufficient affidavit of defense. Appellee says the appeal is too late. Appellant suggests it is premature and for that reason may be quashed. Section 17 of the Practice Act of 1915, P. L. 483, provides: w.The plaintiff may take a rule for judgment for want of a sufficient affidavit of defense to. the whole or any part of his claim, and the court shall enter judgment or discharge the rule, as [282]*282justice may require.” Plaintiff took a rule for judgment for want of a sufficient affidavit of defense, and, after due consideration it was disposed of by tbe learned court below by entering upon tbe record of tbe case “May 17, 1920 Rule absolute”; an opinion stating tbe basis of this action was filed, concluding “For these reasons.we have entered judgment for tbe plaintiff for tbe installment of pension sued upon.”

This appeal was not taken until November 22, 1920, more than six months after tbe action of tbe court of May 17th and therefore too late, if by that action tbe court shall have entered judgment within tbe meaning of section 17. If tbe court has not entered judgment, tbe appeal is premature.

Judgment is tbe sentence of tbe law pronounced by tbe court upon tbe matter contained in tbe record: 3 Blk. 395. Did tbe court enter judgment? What is meant by tbe entry “May 17, 1920 rule absolute” in tbe circumstances of this case? We have quoted from its opinion, what tbe court intended it to mean. Usage may determine the meaning or meanings of words or phrases. Is there any good reason why we should not understand tbe words in tbe sense intended by tbe learned court? If it appear that it has been common practice for courts to enter judgment for want of a sufficient affidavit of defense by tbe short entry in question we must accept it. For many years in tbe Common Pleas of Philadelphia, tbe words in question have been interpreted as tbe entry of judgment. On appeal they have been so considered, as any cursory examination of recent State reports will show. In Faux v. Fitler, 223 Pa. 568, “rule absolute” was treated as tbe entry of judgment, — tbe Supreme Court saying, “Tbe court below entered judgment.” In Wood v. Kerkeslager, 227 Pa. 536, on appeal from a like order, it was said: “A rule was thereupon again taken for judgment for want of a sufficient affidavit of defense, and, having been made absolute, we now have tbe appeal of tbe defendants.” Norris v. Breakwater [283]*283Co., 231 Pa. 163, is another instance. Though different phraseology on this subject is employed in the Practice Act from that contained in the Act of 1887, the same effect seems to be attributed to the entry since the Practice Act became effective, for in Permutit Co. v. Wallace, 264 Pa. 9, the appeal was “from the action of the court below mating absolute a rule for judgment for want of a sufficient affidavit.” See also Wayne Title, etc., Co. v. Treat, and Chatham, etc., Bank v. Tull, decided February 14, 1921. The late Judge Ralston who helped draft the statute apparently was of opinion that no change was made in this regard: 72 Leg. Int. 815, col. 3.

In Pierson v. Krause, 208 Pa. 115, where the court below expressed its judgment on a rule for judgment for the amount as to which the affidavit of defense was insufficient, by “rule absolute for $2,907.57,” the Supreme Court returned the record so that the court might adjudge “specifically the portion or portions of the affidavit of defense which it deems insufficient as to the portion of the claim for which judgment is asked.” It was not suggested that the judgment was bad because of the short entry. In Smucker v. Grinberg, 27 Pa. Superior Ct. 531, one of the assignments of error was “Because the learned court did not file an opinion and gave judgment by the simple entry ‘rule absolute.’ ” It was not suggested that judgment had not been entered, and President Judge Rice said, page 537: “The making absolute of the rule to show cause necessarily implied an adjudication that the portion of the affidavit of defense relative to that claim was insufficient in law.” See to the same general effect Moore v. Eyre, 32 Pa. Superior Ct. 259; Lance v. Bonnell, 105 Pa. 46, 48; Fisher v. Railway Co., 185 Pa. 602, 605.

In some counties we understand the rules of court require that notwithstanding the short entry “rule absolute,” an order to the prothonotary to enter judgment formally is necessary. Perhaps that is the better prac[284]*284tice. But in view of the well established local usage as to the legal effect of the entry rule absolute, as has been indicated, and in view of the consequences that might follow a decision that judgments so entered and acted upon since the Practice Act became effective were not judgments at all, we must hold that this record shows that a final judgment, from which an appeal will lie, was entered on May 17,1920, and that this appeal is too late.

The motion is granted and the appeal is quashed.

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