Smaltz v. J. B. Hancock & Co. , 118 Pa. 550 ( 1888 )

Opinion,

Mr. Justice Paxson :

The verdict rendered in this case on May 17, 1880, was not only vague and uncertain, but appears to have been impossible of execution. The house which the plaintiffs were to reconvey as a condition of their having judgment for $700 did not belong to them, and they allege never did belong to them. A deed therefor had been made to them by one Joseph M. Price under the agreement between the plaintiffs and said Price, of July 5, 1872. This house, however, was not the house that contract called for, and when the plaintiffs discovered this they declined to accept the deed, and the house so conveyed was subsequently sold by the sheriff. The plaintiffs alleged that the deed described the wrong house and that this was a fraud, not a mistake. They therefore commenced this suit to recover the value of the house which they were to have received, vizg $700, and succeeded in getting a verdict for that amount, but coupled with a condition that they reconvey a house which they did not own nor even claim to own.

Why this mistake was not corrected when the verdict was rendered I cannot understand, unless it be the plaintiffs had not then discovered the fraud practiced upon them. Be that as it may, the matter was allowed to sleep until May 1, 1886, when the plaintiffs paid the jury fee, entered judgment upon the verdict, and issued an execution for the $700. The defendant then came in with a motion to set aside the fieri facias which was so proceeded in that upon July 17, 1886,'the court below set aside not only the execution but also the verdict and judgment entered thereon, and granted a new trial.' The plaintiffs prior to the first trial had filed an additional count in covenant, the first count having been in assumpsit; the additional count was demurred to, after the order for the new trial; the demurrer was overruled. A plea was then put in to the additional count, and on the same day a motion was made for an order on the plaintiffs to pay costs up to that time and for a continuance of the cause. The continuance was granted, but the order for costs was denied. The case subsequently proceeded to trial with the result of an unconditional verdict for .plaintiffs, for $1,288.

The. ■ principal .question involves the power of the court below to set aside a verdict and judgment entered some six years before. It was not done upon the ground of fraud, nor was it for a mistake committed by the clerk in recording the judgment. In Cohn v. Scheuer, 115 Pa. 178, we permitted a verdict to be amended after it had been recorded and judgment entered ■ thereon, so as to make it conform to the verdict actually rendered by the jury. In cases of fraud and for the correction of the misprision of a clerk, the lapse of time appears to be no bar to the reformation of a record: Cohn v.. Scheuer, supra, and cases there cited. But we are not dealing-with either of these questions now, and if this were all, we would not hesitate to say that the court below had no power to set aside the judgment and grant a new trial. It is not all, however.- In the order of court of July 17, 1886, it is stated that “on the 80th of April, 1886, a fieri facias was issued, based upon the. above verdict, whereupon a rule was taken by the defendant to set the same aside, which rule was made returnable Saturday, May 15, 1886. Upon the hearing of the said rule upon May 22, 1886, it appearing to the court by admission of CQunsel for plaintiff and defendant, that the said verdict was impossible of enforcement by reason of the sale of said thirtieth lot by the sheriff before verdict, the said rule was. made absolute.”

We have here on the record the admission of defendant’s counsel that1 at the time the verdict was rendered the condition thereof was impossible of performance. There is nothing upon the record to indicate that the defendant objected to the setting aside of the judgment, nor is there any trace of such objection in any part of the record of the subsequent, trial. The judgment which was set aside was a judgment against him and he may have been entirely willing to see it set aside and have another chance before the jury. While it. was not for him to take a writ of error for the reason that he was not injured, yet we think, in view of all the circumstances of the case, especially of the fact that the court-below was,.endeavoring to correct that in the administration. of the law, which, though not a slip of the clerk, was at the same time of so grave a character as to amount to a fraud had it been known to the defendant and concealed from the court. The defendant should have objected at some stage of the proceedings. He remained quiet and took his chance of a verdict. If he did not wish to be bound he should have said so. He should have made some objection or some protest and not have misled the court and the plaintiffs and subjected the latter to the expense of a new trial.

We do not see any error in overruling the demurrer to the additional count. The said count was in proper form and set forth a good' cause of action. Nor are we disposed to reverse because the court did not impose costs upon the alleged change of the form of action. The change consisted of filing a count in covenant in an action on the case. This count was filed in 1880 and, as before stated, prior to the first trial. This application was made upon the second trial, six years afterwards.

Judgment affirmed.