Weinberger v. Suess

Per Curiam,

This is an appeal by defendant from the order of the common pleas, discharging his rule to show cause why an appeal from the judgment of the county court should not be allowed. If the rule of the county court relative to the daily trial list of jury cases is valid, the trial court committed no error of law or abuse of discretion in going on with the trial, notwithstanding the unexcused absence of the defendant and his counsel. This is clearly shown by the opinion of Judge Evans. Rules of court are an indispensable aid in the transaction of the business of the court, and we entertain no doubt of the power of the court to make the rule in question. But such a rule of court is of no value if the enforcement of it under such circumstances as are disclosed here is to be set aside by the appellate court as an abuse of discretion. So far as this question is concerned, the case is ruled in principle by Birdsong v. Polinsky, 58 Pa. Superior Ct. 515.

The action was trespass for malicious prosecution. It grew out of the arrest of the plaintiff on a charge of larceny. The jury assessed his damages at $250, which seems not an extravagant sum in view of the undisputed fact that the plaintiff actually expended for counsel fees and obtaining bail $125. In disposing of defendant’s motion for a new trial, the county court made this order: “It is ordered that if the plaintiff, within ten days, shall file a remittance of all such verdict herein over one hundred and twenty-five dollars, with condition that the same shall be paid within thirty days after notice of its filing to defendant’s counsel, a new trial is refused; otherwise a new trial is granted.” Plaintiff duly filed the remittance and gave due notice to the defendant, but the latter saw fit not to pay. Under the circumstances he has no just cause to complain that the common pleas did not allow an appeal upon the ground that the damages awarded were excessive. The validity of such orders has been sustained in many cases, amongst which are the following: Fleming v. Dixon, 194 Pa. 67; Wirsing v. Smith, 222 Pa. 8; McLaughlin v. Kelly, 230 Pa. 251; Campbell v. Pittsburg Bridge Co., 23 Pa. Superior Ct. 138.

The assignment of error is overruled, and the order of the court of common pleas is affirmed at the cost of the appellant.