Russell v. Archer

Mr. Justice Mercur

delivered the opinion of the court, January 4th 1875.

Archer filed a mechanics’ lien against the plaintiffs in error, claiming §1327.75, for work and labor done on an oil-lease. A scire facias was issued, return served personally; defendants, in their affidavit of defence, admitted that they were indebted to the plaintiffs in the sum of §810.11, but set forth a defence to the balance of the claim. Judgment was entered for the sum admitted to be due, and the plaintiff recovered before the jury §450 additional.

This record presents a single question. It is this: Was the judgment first taken a final one ?

The 16th rule of the court below, inter alia, declares that the plaintiff may take judgment for such part of his claim as the defendant in his affidavit of defence may admit to be due, “ which judgment, for the purpose of lien and execution shall be final, but shall not be a bar to the recovery of any balance which may be justly due to the plaintiff. If he takes judgment for the part so confessed, he shall state in his praecipe therefor, whether he accepts it in full of his claim or will proceed to trial for the balance. ” In the affidavit of defence put in by the defendants below, they admitted their indebtedness in the sum of $870.11, and averred a defence to the residue of the plaintiff’s claim. Thereupon the plaintiff below filed his praecipe directing the prothonotary to enter judgment for the sum admitted to be due, but therein further declared, that he did not accept said sum in full of his claim; but that he would proceed to trial for the balance. He did so proceed. On the trial the defendants below interposed the first judgment as a bar to any further recovery against them. The court negatived the point. That answer is assigned as error. The jury rendered a verdict for $450 in favor of the plaintiff below, in addition to the sum previously admitted to be due, and one judgment was entered for both sums united.

Thus, it is shown, the first judgment was taken strictly in accordance with the rule. That rule clearly shows the extent of its finality.

It expressly authorizes the plaintiff at his option to proceed to trial for the recovery of the residue of his claim. The plaintiffs in error deny the right of the court to make and enforce this rule. They further urge that inasmuch as an execution had actually been issued on the first judgment, although no money was made thereon, it barred any further recovery. No question now arises as to the regularity of issuing the execution. The validity of the subsequent verdict, and of the consolidated judgment thereon, are all the questions which now arise.

The case of Brazier v. Banning, 8 Harris 345, is cited in support of the position that the first judgment was final. As there can be but one final judgment in any personal action, O’Neal v. O’Neal, 4 W. & S. 130, the last judgment is said to be invalid.

The case of Brazier v. Banning arose under an Act of Assembly in which there was no provision authorizing the plaintiff to proceed to trial for the residue of his claim after taking judgment for the sum admitted to be due. Nor was that case covered' by any rule of court. This distinction is clearly pointed out in the opinion of the court. Besides, in that case the first judgment had actually been collected on execution. In McKinney v. Mitchell, 4 W. & S. 25, it was held that upon an affidavit to part of a claim, the plaintiff might take judgment for the residue and receive it, and then proceed to issue, trial and judgment for the portion which was disputed. This rested on a rule of court not as specific as tbe one now under consideration.- The latter judgment was there sustained, although the first judgment, together with all costs, had actually been paid to the plaintiff. The court there said the first judgment was in the nature of an interlocutory judgment, although the rule of court made no provision for proceeding to trial after it was taken. In Coleman v. Nantz, 13 P. F. Smith 178, the right of. the-plaintiff to proceed for the recovery of the residue of his claim, after accepting a judgment for the sum admitted to be due, was again affirmed. This, too, was under a rule of court which did not go so far as in express terms to authorize the plaintiff to proceed to issue and trial for the residue of his claim. It was there, as here, urged that the law does not tolerate such an incongruity as the entry of two judgments in the same action. To avoid this incongruity the first was held as interlocutory. Where it is not designed to put an end to the suit, there is no impropriety in so treating it.

The power given • to the Courts of Common Pleas to establish such rules for regulating their practice and for expediting the determination of suits, "causes and proceedings therein, is- full and most ample: Purd. Dig. 233, pl. 136. Apart from this Act of Assembly, the power to make rules is inherent in every court of record.

We see nothing in this rule of court calculated to work injustice. It is designed to expedite the proceedings therein by removing from suits pending such portion of the claim as is not controverted. The first judgment may be final for some purpose and not for all. The offer was made and accepted under the rule which permitted the suit to proceed for the residue of the claim. The first judgment cannot then be said to be final for all purposes. It was substantially interlocutory. We discover nothing in this rule of court, nor in the action of the plaintiff below, in taking the first judgment under it, to preclude his subsequent recovery in the same action. The learned judge was therefore entirely correct.

Judgment affirmed.