Van Vliet v. Conrad , 95 Pa. 494 ( 1880 )

Mr. Justice Gordon

delivered the opinion of the court,

The action of the court below, on the 17th of November 1879, granting a new trial, was not only regular, but final and conclusive. This action was founded on the rule taken May 24th 1879, the clay of the rendition of the verdict, which was continued by the motion for rehearing filed July 8th. As the conditions on which the new trial was granted were fully complied with, the judgment, improperly entered on the 9th of July, should have been stricken off and the parties allowed to proceed to a retrial of the case. Instead of this, we find the court, on the 11th of December, being then presided over by a-judge from a neighboring district, entertaining a rule to inquire into the regularity of the former proceedings, and the power of the associates to grant a new trial, which rule was, by the same judge, disposed of on the 19th of March 1880, by a vacation of the order for new trial. In support of this action, it is urged that the court had no power to entertain the rule for reargument after discharging the motion for a new trial, and in support of this view of the case, Spang v. The Commonwealth, 2 Jones 358, is cited. In this case, however, nothing was determined but that a rule to show cause why judgment should not be opened, does not operate to stay proceedings unaccompanied by an order to that effect, but it does not rule that the court could not, under that motion, have proceeded to open the judgment.

In the case in hand, the question is, did the motion for reargument continue the consideration of the previous rule for a new trial ? We think it did.

On the same day the order was made by the court discharging the first rule it entertained, or, what is the same thing, permitted to be filed a motion for the rehearing of that rule. Now, as both these acts occurred on the same day, and hence were legally cotemporaneous, the effect was to postpone the final consideration of the rule for a new trial to some future time and to annul the order then made. It follows that power was not wanting in the court to consider and dispose of as it did on the 17th of November, the rule thus pending. What then is wanting to the regularity of that action ?

It is said the associates had no power to overrule the previous act of the president judge; but they did nothing of the kind ; they only acted, as they had full power to do, upon a pending rule granted by the president judge himself; a rule, moreover, which he, in express terms, had referred to his associates for their consideration and final action.

The conclusion, resulting from the above-stated condition of affairs, is this : the new trial having been granted by a court having full power so to do, the defendant having complied with the conditions then imposed upon him, by paying the costs and giving a bond w’ith approved sureties for the security of the plaintiff, he could not be deprived of a right thus lawfully acquired, by an attempt of the court to reverse its own order some four months after it was made.

The remaining assignments of error we leave undetermined, thinking it better to send the case back with a procedendo, that it may be • proceeded in from the point where it was left when the new trial was granted.

The judgment of the court below, as well as the order of 19th March 1880, is reversed and set aside, and a procedendo awarded.