Mayer v. Brimmer

Per Curiam,

If there was any irregularity in the.proceedings after verdict it seems to have been invited by the plaintiff’s point, which was as follows: “ Although mechanics’ liens are filed and the amount liquidated or unliquidated, and the contractor was under his agreement and contract to furnish a release of all liens before final payment, and said releases are not furnished, that is not a condition precedent to plaintiff’s recovery; the adjustment of the verdict is entirely within the control of the court upon judgment to be entered thereon, or execution.” Moreover, a question of law raised by the defendant’s second and third points was reserved. True, this was not spread at length upon the docket, but it appears in the official report of the charge, which, pursuant to exceptions taken before verdict, was “ directed to be filed as part of the record in the case.” Under the circumstances we think the charge and answers to the points, wherein the reserved questions were set forth, should have been printed. Acting upon the suggestion made in the plaintiff’s point and exercising the power to reserve questions of law and to enter the proper judgment notwithstanding the verdict, the court entered final judgment in favor of the defendant on March 6, 1899. If the proceedings which led up to this judgment were irregular, or if the judgment was erroneous, the plaintiff had an adequate remedy by appeal. Instead of availing himself of this remedy he allowed the time to appeal to pass without any action on his part, and on November 28,1899, moved to strike off the judgment, and from the order refusing this motion took the present appeal. Under the circumstances we are not called upon to determine whether or not the judgment was irregular or erroneous; it is sufficient to show that it was not void. And if it was not void the court committed no error in refusing to strike it off after the time for appeal had gone by. The principles controlling the question for decision are clearly enunciated in Clarion, etc., R. Co. v. Hamilton, 127 Pa. 1. It was not intended in the act of 1891 to give a party aggrieved by a judgment obtained in an adverse proceeding, which at the worst is only erroneous and not void, two opportunities to obtain a reversal.

The order of February 10, 1900, dismissing the plaintiff’s motion is affirmed, and the appeal is dismissed at his costs.