out lines surrounding a tract of woodland and permit your petitioners to enter into which said C. R. Anstine represented a defense and that execution on said note contained about twelve acres of good tim- be stayed in the meantime." ber. This land was other than the three woodlots mentioned in said agreement on a different tract formerly the M. Kinard

C. P. of

Lancaster Co.

I have, however, no doubt as to the

Keefer v. Intelligence and News- correctness of the conclusion arrived at

Journal

Libel--Demurrer-Effect of demurrer Judgment for plaintiff on demurrerRule to open-Power of court over judg

ments-Amendment.

A court has control over its own judg

ments, and it may open them or set them aside if the justice of the case so demands; discretion of the court and is by grace and

but this is only done on appeal to the sound

not by right.

tion for libel.

by us. Except in equity cases or under the Practice Act of 1915, I know of no cases under the common law which decide that, if a demurrer be filed and it is determined that the statement is sufficient in law, a judgment of respondeat ouster and not quod recuperet shall be entered. In Fidelity Trust and Safe Deposit Company v. Second Phoenix Building and Loan Association, 17 Pa. Superior Ct. 270, where the demurrer was overruled and judgment entered in favor of the plaintiff, it was said: "The defendants were fully acquainted with all the facts at the time they were confrontThe court has power to open a judgmented with plaintiff's statement, and if they entered for plaintiff on a demurrer in an ac- desired to traverse the allegations of plaintiff, they were then at liberty to do SO. They elected to demur and thus avoided filing an affidavit of defense. Having taken their chances with the court, with results not altogether satisfactory, they subsequently concluded that they would like to try their fortunes with a jury, and, alleging a defense upon the merits, asked to have the judgment opened. There was no abuse of discretion in the refusal of the court below to open judgment." In Evans v. Tibbins, 2 Gr. 451, which was an action of slander, a general demurrer was filed to the statement, and, as the court found that some of the counts were sufficient in law, a judgment was entered for the plaintiffs.

Except in cases under the Practice Act of

1915 or in equity, the effect of a demurrer

admits the facts and leads to a judgment

quod recuperet and not respondeat ouster.

In this case the court opened a judgment entered for the plaintiff on a demurrer in an fendant's counsel that the demurrer was filed under a misapprehension of the law as to its effect, where otherwise, the next step before an appeal could have been taken, would

action for libel, on the allegation of the de

have been a writ of inquiry under common law practice to determine the amount of damages due the plaintiff.

Rule to show cause why judgment should not be opened. Rule absolute.

James Hale Steinman, Chas. L. Miller and Henry C. Niles, for rule.

S. R. Zimmerman and John A. Coyle, It is not our province to disregard the

contra.

Landis, P. J., January 17, 1925.-If the counsel for defendants rest their case upon the ground that the judgment on the demurrer was improperly entered, then there is no use to dwell at any length upon their application. That question was duly considered and passed upon, and their remedy for any mistake which they are of opinion we have made is not to us, but to an appellate court. If the practice would be established that, after full argument of the question at issue and a decision of it, any party could again be heard, there would be no end to the litigation; for, having taken their chances, the way would always be open to try again. I do not, however, understand this position to be now insisted

upon.

opinions of the appellate court. If the rule, that is their business; but, until they Supreme Court conclude to adopt another do so, we will endeavor to follow their decisions as we understand them.

The questions which really now arise. are: Whether we have power to open up this judgment, and, if we have, whether we ought to do so.

Generally speaking, the court had control over its own judgments, and it may open them or set them aside if the justice of the case so demands. But this is only done on appeal to the sound discretion of the court, and is by grace and not by right. In Green v. Worth Bros., 223 Pa. 604, where the court sustained the demurrer and entered judgment for the defendant, an application to open the judgment was refused, and this action

was sustained on appeal. But, in Burk v. fendants have no legal right to demand Huber, 2 W. 306, Gibson, C. J., said: "I such action of the court, and that it must be solely on the ground of favor to preknow of no case of amendment at common law after final judgment on demurr is a class of newspapers which, to acvent the possibility of injustice. There er; but I know of no inflexible rule which complish political results, seem to be disforbids it to be allowed at any time dur- regardful of the rights of individuals. ing the term. A court cannot be too lib- No one ought to prevent the press from eral of its indulgence before the trial, or exposing public wrongs, but when emtoo strict in its construction of our sta-ployees, for ulterior purposes, whether tute, which authorizes amendments after they be political or sensational, make unthe jury are sworn. No one appreciates founded charges against a private citizen, more highly than I do that extreme ac- it is right that they and their superiors curacy in pleading which nothing but a should be made to respond in damages in compulsory observance of precedents and a court of justice. Nor is it entirely forms of practice can produce; but I am justifiable that, after raising legal techunable to conceive why a party should nicalities to save themselves from anbe concluded by a variance, when the de-swering on the merit of the case, they claration or plea may be made to con- should be given a second chance, in the form to the truth of the case without delay or injury to any one. Instead of hope that a partisan jury, or some partican on a jury, will protect them from encouraging laxity and negligence, the consequences to him whom they have amendments conduce essentially to cer- wronged. This case seems to me to be tainty and precision; specially with us somewhat of this class, for up to this who, for want of a class of the profes-time it has not been intimated that the sion to attend to the pleadings, are un-publication in the defendants' newspatrained to accuracy in the first instance pers was true and that the plaintiff was * * * Unless for strong reasons to the contrary, I would say that an amend guilty of wrongdoing. ment on demurrer ought to be allowed, In Logan v. Jennings, 4 R. 355, it was as long as the record remains in the held that "where the action sounds in breast of the court; for to say that the damages, judgment for the plaintiff on proceedings cease to be in fieri when demurrer is interlocutory, and it is necjudgment is signed, is to offer an objec-essary before final judgment that damtion more artificial than solid, and one ages should be assessed by a jury. Until which the court is competent to obviate final judgment, a writ of error does not in an instant, by ordering the judgment lie." Therefore, no appeal from our deto be struck out. That would, I admit, cision can be taken by the defendants, as be a step in advance of any that has yet the record now stands, until damages are been taken; but instances are not want-assessed, and if the present judgment in ing of leave to amend after the delivery of the court's opinion in favor of the demurrant, which with us is substantially the same thing * * * There is certainly nothing peculiar in a judgment on demurrer; nor do I see any reason for a difference, whether the amendment is to sustain or to overthrow the judgment, provided it be indispensable to justice." Of course, in this case, the application is not to amend the pleadings; but it is a request to open the judgment, so that pleas may be entered, and, therefore, it is practically the same thing. I think that this can legally be done, even after judgment on demurrer has been entered. Ought we, then, to exercise our grace by so doing? It is certain that the de

favor of the plaintiff shall remain, this must be done by a writ of inquiry. Rule XX, Section 4, of our Rules of the Common Pleas Court, provides that "in all cases founded on contract and sounding in damages, where the defendant does not object, the prothonotary shall liquidate the damages and enter judgment for the same; but if the defendant objects, or if the action be founded on a tort, the damages shall be ascertained by a writ of inquiry." The practice of determining the amount of damages in such cases in England seems to have been fairly well settled and defined. Ordinarily, in the execution of the writ, the sheriff sat as a judge and tried by a jury the question, and ascertained the damages which the

con

mony is one about which reasonable men

might honestly differ.

The orphans' court has jurisdiction of a petition averring that an executor has in his

tator in his life time, and which the executor

the executor from disposing of the same un

upon the payment of the debt for which the petition avers the stock was pledged.

plaintiff had sustained, subject to nearly A substantial dispute exists when a the same law and conditions as a trial byclusion of fact to be drawn from the testijury at nisi prius. The jury consisted of twelve men summoned by the sheriff for this particular purpose. In this country, custody, as executor, certain shares of the however, the practice differs in the differ-capital stock of certain corporations which ent jurisdictions, and in some of the were pledged by the petitioner to the tesstates it is regulated by statute. No spe-contends are the unqualified property of the cial form is, however, provided in Penn-estate, and praying for an order restraining sylvania, and I take it that we would til further order of the court, and ordering here be regulated by the practice of the him to deliver the same to the petitioner common law. In Watkins v. Phillips, Wh. 209, it was said: "A writ of inquiry is a mere inquest of officers, to inform Sur demurrer to the petition of E. the conscience of the court, who, if they Bair Gitt praying for an order restrainplease, may themselves assess the dam- ing John Greenaway, Jr., executor of the ages (1 Tidd, 513)," and that, "if either will of John Greenaway, Sr., late of the party is dissatisfied with the assessment Borough of Hanover, deceased, from of damages, the error may be corrected by appeal to the court." Such juries are, disposing of certain shares of the capital however, not taken out of the general stock of the Hanover Cordage Company panel, and, if picked up in a haphazard and of the J. W. Gitt Company, and ormanner, there is a possibility of incon-dering him to transfer the same to the venience and injustice being done to the

defendants. Then, too, counsel fairly petitioner upon the payment of certain admit that their misapprehension of the notes mentioned in the petition; in the law has brought about their present hard-Orphans' Court of York County, Pa. ships. Demurrer dismissed.

I have, therefore, concluded that we will relieve their situation by opening the judgment, on condition that they withdraw their demurrer and enter general pleas.

Niles & Neff, for demurrer.

Allen C. Wiest, contra.

Ross, J., February 9th, 1925.-The petition states, in substance, that prior to the 23rd of January, 1922, the petitioner was the owner of one hundred and fiftythree shares of the capital stock of the "Hanover Cordage Company," a corporation, and one hundred and thirty

Orphans' court-Jurisdiction - Sub- shares of the capital stock of the "J. W. stantial dispute-Restraining and man-Gitt Company," a corporation.

datory order on executor.

On a demurrer to a petition in the orphans'

court, raising the question of the jurisdiction

of the court, the averments in the petition

must be taken as true.

That said shares of stock had been pledged by her, the petitioner, to the "Ilanover Savings Fund Society" to secure the payment of a certain loan made

A demurrer to a petition in the orphans' by her, the petitioner, from the said court does not raise "a substantial dispute" Hanover Savings Fund Society.

within the intendment of the act of assembly providing for the sending of issues by the orphans' court to the common pleas in

That about the same time, the said

certain cases in which there is a substan- Hanover Savings Fund Society held a certain 231 shares of the capital stock of

tial dispute.

A fact is properly said to be in dispute

by another, and both with some show of reason; a

when it is alleged by one party and denied the said Hanover Cordage Company, mere naked allegation without which stock, under an oral agreement evidence or against the evidence, cannot cre-made with the President of the said

ate a dispute within the meaning of the law.

Hanover Savings Fund Society, she, the "$13,000.00
petitioner, was to buy from the said
Hanover Savings Fund Society.

"Hanover Pa., Jan. 23rd, 1922. "I. E. Baer Gitt, hereby promise to That on the 23rd of January, 1922, pay John Greenaway, Sr., or his order, the said Hanover Savings Fund Society |the sum of $13,000.00 six months from gave notice to the petitioner that she the date hereof, without defalcation, for was required to pay a certain amount value received, with interest from date: upon her loan, which was secured by said 153 shares of stock of the Hanover Cordage Company and said 130 shares of stock of the J. W. Gitt Company.

having deposited herewith as collatral security for the payment of this obligation or any renewal thereof, one hundred and thirty (130) shares of the capital stock of the J. W. Gitt Company, certiIn order to keep her sid stock, an oral ficates Nos. 35 for 100 shares: No. 36 agreement was made between herself and for 25 shares and No. 37 for 5 shares. John Greenaway, Sr., that he would pur- This obligation and the collateral is chase or procure said 153 shares of stock given under the condition that the holdof the Hanover Cordage Company ander hereof shall give to the maker the 130 shares of stock of the J. W. Gitt right to renew the same for a total perCompany, which was held as collateral iod of not to exceed three years from the and the 231 shares of the Hanover Cord-date hereof. In the event of default in age Company stock which the said Han- the payment of interest or principal when over Savings Fund Society owned but due, the holder hereof shall have all the had agreed to sell to the petitioner, at the rights incidental to collateral pledged as total price of $70,600.

security.

"(Signed) E. BAER GITT. Witess: Lena Strickler."

57.600.00

At the same time, an oral agreement was made between the petitioner and John Greenaway, Sr., that the said Greenaway would loan the petitioner $70,600 to be used by said Greeneway for the payment on behalf of the peti- "Hanover, Pa., January 23, 1922. tioner of said stock to be purchased by "I, E. Baer Gitt, hereby promise to said Greeneway for the petitioner, and pay to John Greenaway, Sr., or his or that, immediately after said Greeneway der, the sum of fifty-seven thousand six shall have purchased the said stock for hundred dollars, three months from the petitioner, he, the said Greenaway, Sr., date hereof, without defalcation, for shall hold said stock as collateral secur-value received, with interest from date, ity for the $70,600. having deposited herewith as collateral That the 130 shares of the J. W. Gitt security for the payment of this obligaCompany stock were to be held as col-tion or any renewal thereof, three hunlateral for the payment of a note for the dred and eighty-four (384) shares of the sum of $13.000 on the terms, conditions capital stock of the Hanover Cordage and stipulations mentioned in the note, Company, now standing in the name of and the said 153 and 231 shares of stock the Hanover Savings Fund Society, to of the Hanover Cordage Company were be transferred on the books of said to be held as collteral for the payment of company, and to be re-issued to the said a note of $57,600, on the terms and con-John Greenaway, Sr.; the said stock to ditions, and with the stipulations con-be held under the following terms and tained in said promissory note.

conditions:

That pursuant to said oral agreements, "First: The said E. Baer Gitt shall all made and entered into on the 23rd have the right to renew this obligation day of January, 1922, the said two writ- every three months for a total period not ten notes were made, executed and de- to exceed three years from the date herelivered by petitioner to the said John of, the interest to be paid at such renewGreenaway, Sr., the copy of the said al periods, and the payment of interest notes being as follows: For the tender of payment of interest for the said three months renewals to be