King v. Brooks , 72 Pa. 363 ( 1873 )

The opinion of the court was delivered, by

Sharswood, J.

— It is true that no court has power to strike off or vacate a judgment which is regular on its face. But every court has power to open a judgment in order to give the parties a hearing or trial. In the case of judgments by confession or default there is no limit of time to the exercise of this power, but in the case of judgments entered adversely after a hearing or trial it is settled that it must be done before the end of the term at which they are entered: Bredin v. Gilliland, 17 P. F. Smith 37; Catlin v. Robinson, 2 Watts 379; Stephens v. Cowan, 6 Watts 511; Mathers’ Ex. v. Patterson, 9 Casey 485; White v. Leeds, 1 P. F. Smith 187; Commonwealth v. Mayloy, 7 Id. 297. Even when the order of the court is to vacate or strike off — if it is apparent on the face of the record to have been for the purpose of a rehearing or retrial, it is in substance an order to open — though it is much better in all cases to employ the proper term. Had the judgment in this case been upon a verdict in favor of the plaintiff he might have had ground to complain that the court had deprived him of a lien which had already attached, which would have -been preserved if the judgment had been opened. The court of errors, however, could have corrected the irregularity by an amendment. As however the verdict and judgment were for the defendant and no costs had been taxed, no lien had attached, and no injury had been done to the plaintiff in error in this respect. It is very evi dent from the record that the power exercised by the court in this instance was within the limit which has been established. It is true that the rule for a new trial was discharged at the April Term, and the defendants had then a right upón payment of the jury fee, to a final judgment. Had they availed themselves of this right the court could not have opened it at the succeeding term, unless perhaps in the case of a mere clerical mistake in having entered a judgment for the wrong party as was the case in Stephens v. Cowan, 6 Watts 511. It is to be noted, however, that this was not actually decided in that case, the judgment having been upon a case stated, this court considered and decided as they had a right to do that the judgment below was such as should have been rendered. The ground of amending a judgment or taking it off whether before or after the end of the term, ought always to appear of record that the court of error may see that it is not a mere arbitrary exercise of discretion. The discretion exercised in opening a judgment is not however subject to review: White v. Leeds, 1 P. F. Smith 181. In point of fact the judgment here was not entered until June 3d 1872; at the same term —indeed on the same day — the order complained of was made and the rule for a new trial was afterwards, June 24th 1872, made absolute.

Order affirmed.