O'Donnell v. Flanigan , 9 Pa. Super. 136 ( 1898 )

Opinion by

Smith, J.,

From an examination of the petition and depositions submitted in this case, we cannot resist the conclusion that the application to open the judgment is based on the negligence of the defendant himself. He was sued in trespass, for damages alleged to have been caused by an assault on the plaintiff, and lie retained an attorney to appear and defend the action. On April 22, 1897, an appearance and plea were regularly entered and the cause thus put at issue. On October 28, 1897, the defendant consented to the withdrawal of his attorney’s appearance and signed a paper to that effect, after which the attorney gave the matter no further attention. The defendant failed to engage another attorney or to take any further steps in the cause. The case was called for trial on January 12, 1898, in the absence of the defendant and a verdict was rendered in favor of the plaintiff. So far as the record showed the defendant’s former counsel remained as attorney of record at the time of trial, and so continued until after the judgment had been entered on the verdict and the term of the court had expired.

After the term at which judgment was entered had ended, an application, nunc pro nunc, for a new trial was made, which was afterwards granted. From this order the plaintiff appealed. The grounds of the petition for a new trial are in denial of the plaintiff’s right to recover, alleging a defense to the action. It is also averred that the defendant had no notice of the trial and was not represented on that occasion. But, with ordinary' diligence the defendant might have ascertained when the case would be tried, and no sufficient reason appears for his failure to do so. The record clearly indicated that both parties were ready for trial and, when reached, the court was warranted in proceeding to verdict and judgment. The consequences of the defendant’s delinquency cannot now be cast upon the plaintiff, in any measure, against his protest.

The right of the common pleas to grant a new trial after the term, exists only in extraordinary cases, such as fraud, etc. It has never been extended to cases where the defendant had no hearing, through his own negligence. It is his duty to be in attendance at the trial, and neither court nor plaintiff is required to keep him notified of the time set for that purpose. If, after putting the case at issue by, a plea, he does not attend the trial, his absence ought not to deprive the, plaintiff of a verdict unimpeachable after the term. Otherwise a defendant may trifle with the court and the rights of the plaintiff. Nor do we think that the defendant’s ignorance of the time fixed for trial sufficient ground for granting a new trial nunc pro tunc. Granting or refusing new trials when asked for during the term, are within the sound discretion of the trial court. But not so after the term has passed. Then the rights of the parties are fixed and permanently established,' and nothing short of an extraordinary cause will justify the further intervention of that court. The manifest negligence of the defendant should not be accepted as sufficient to move the court when the motion is made in time, and most certainly not after the term has expired.

The objection to the sufficiency of the declaration, also, is barred by the laches of defendant. Moreover, no objection of this character appears on the record. We cannot act upon questions not regularly before us, and have no right to go out of the record under any pretense. Jf it was intended to assail the declaration as inadequately showing a cause of action, this should have been done by demurrer, or, perhaps, by plea: Bradly v. Potts, 155 Pa. 418; Gorman v. Bigler, 8 Pa. Superior Ct. 440. But the question is not before us and we need not discuss it.

The order granting a new trial is reversed at the cost of the defendant.