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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 A rule was granted on respondents to woodlots mentioned in said agreement on a different tract formerly the M. Kinardtion should not be granted, returnable the

show cause why the prayer of the petitract;

first Monday of June, 1924. “That the said C. R. Anstine repre- The respondent duly filed his answer, sented that said tract of twelve acres was under oath, which denied all the essenpart and parcel of the farm for which tial facts alleged in the petition. the said parties were negotiating; that relving upon said representations the said

There was no testimony taken in supCharles D. Wilt, one of your petitioners, and nothing was offered in support of

port of the facts alleged in the petition, entered into and executed the agreement those alleged facts but the oaths of the a copy of which is hereto attached and marked Exhibit “A”; that he gave to the petitioners appended to the petition. said C. R. Anstine a judgment exemption confessed judgment, under seal, entered

The judgment sought to be opened is a note for five hundred ($500.00 dollars, due April 1st, 1924, with Elmer E. Bow- under a warrant of attorney. ers, your other petitioner, as surety;

It has been decided, in the case of “That after the execution of said English's Appeal, reported in 119 Pa. agreement Charles D. Wilt, one of

533 (quoting from the syllabi) that "A petitioners, ascertained that the said farm judgment entered by confession under petitioners, ascertained that the said farm warrant of attorney should not be opendid not contain twelve acres or woodlot whatever and that the tract of ed, nor the evidence submitted to a jury, about twelve acres pointed out by the

unless the written instrument be oversaid C. R. Anstine to your petitioner, should move a chancellor to decree that

come by testimony which, if believed, Charles D. Wilt, did not belong to said

the note was void, or should be re-formit said C. R. Anstine to the said Charles D. ed because of forgery, fraud or mistake.” Wilt; that he called upon the said C. R.

The unsupported testimony on oath of Anstine and demanded from him to know a defendant in such a judgment, admitthe truth concerning the same; that the ting the execution of the instrument with said C. R. Anstine admitted that the said a knowledge of its provisions but allegwoodlot which he had pointed out did ing fraud in its procurement, and the use not belong to nor was it a parcel of the of it, which is directly opposed by the said farm and therefore could not be testimony, on oath, of the plaintiff, is conveyed under the terms of said agree

insufficient to warrant the opening of the Afterwards the said Charles D. judgment or to be submitted to the jury Wilt demanded of the said C. R. Anstine and the trial of an issue awarded.” (See the return of the said note; that the said opinion of Mr. Justice Paxson, pages 539, C. R. Anstine would not return the said 540, 541.) note but entered the same of record in To the same effect is the decision of the prothonotary's office at York, Penn- the Supreme Court rendered by the same sylvania, on the 4th day of April, A. D. Justice, Jaxson, (then Chief Justice), in 1924, and has notified your petitioner the case of Jenkintown National Bank v. that he is about to issue execution and Fulmer, 124 Pa. 337, 342, and the cases collect the same; that the said C. R. An- of Tidioute and Tiona Oil Co. v. Shear, stine has not tendered nor offered to your 161 Pa., 508, and McKee v. Verner, 239 petitioner a deed for said tract of land, Pa. 69. including the twelve acres of woodland Under the well known rule so laid which he had represented to your peti-down by the Supreme Court, it would be tioner belonged to the same.

an act of indiscretion for this court to "Wherefore, your petitioners, showing make the rule absolute in the case at bar. that they have a just, full and legal de- And now, January 26, 1925, the rule fense to said note, would respectfully ask granted in this case is discharged at the vour Honorable Court to open the same costs of petitioners.

C. P. of

Lancaster Co.

I have, however, no doubt as to the Keefer v. Intelligence and News- by us. Except in equity cases or under

correctness of the conclusion arrived at Journal

the Practice Act of 1915, I know of no cases under the common law which de

cide that, if a demurrer be filed and it is Libel--Demurrer-Effect of demurrer determined that the statement is suffici

ent in law, a judgment of respondeat - Judgment for plaintiff on demurrer- ouster and not quod recuperet shall be Rule to open-Power of court over judg- entered. In Fidelity Trust and Safe De

posit Company v. Second Phoenix Buildments-Amendment.

ing and Loan Association, 17 Pa. SuperA court has control over its own judg

ior Ct. 270, where the demurrer was ments, and it may open them or set them overruled and judgment entered in favor aside if the justice of the case so demands; of the plaintiff, it was said: “The debut this is only done on appeal to the sound discretion of the court and is by grace and fendants were fully acquainted with all not by right.

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 action for libel.

desired to traverse the allegations of Except in cases under the Practice Act of plaintiff, they were then at liberty to do 1915 or in equity, the effect of a demurrer so. They elected to demur and thus admits the facts and leads to a judgment avoided filing an affidavit of defense. quod recuperet and not respondeat ouster.

In this case the court opened a judgment Having taken their chances with the entered for the plaintiff on a demurrer in an court, with results not altogether satisaction for libel, on the allegation of the defendant's counsel that the demurrer was filed factory, they subsequently concluded that under a misapprehension of the law as to they would like to try their fortunes with its effect, where otherwise, the next step before an appeal could have been taken, would

a jury, and, alleging a defense upon the have been a writ of inquiry under common merits, asked to have the judgment openlaw practice to determine the amount of ed. There was no abuse of discretion in damages due the plaintiff.

the refusal of the court below to open Rule to show cause why judgment judgment.” In Evans v. Tibbins, 2 Gr. should not be opened. Rule absolute. 451, which was an action of slander, a

general demurrer was filed to the stateJames Hale Steinman, Chus. L. Miller ment, and, as the court found that some and Henry C. Niles, for rule.

of the counts were sufficient in law, a S. R. Zimmerman and John A. Coyle, it is not our province to disregard the

judgment was entered for the plaintiffs. contra.

opinions of the appellate court. If the

Supreme Court conclude to adopt another Landis, P. J., January 17, 1925.—If rule, that is their business; but, until they the counsel for defendants rest their case do so, we will endeavor to follow their

; , upon the ground that the judgment on decisions as we understand them. the demurrer was improperly entered, then there is no use to dwell at any length The questions which really now arise upon their application. That question are: Whether we have power to open up was duly considered and passed upon, this judgment, and, if we have, whether and their remedy for any mistake which we ought to do so. they are of opinion we have made is not Generally speaking, the court had conto us, but to an appellate court. If the trol over its own judgments, and it may practice would be established that, after open them or set them aside if the jusfull argument of the question at issue tice of the case so demands. But this and a decision of it, any party could is only done on appeal to the sound disagain be heard, there would be no end to cretion of the court, and is by grace and the litigation; for, having taken their not by right. In Green v. Worth Bros., chances, the way would always be open 223 Pa. 604, where the court sustained to try again. I do not, however, under the demurrer and entered judgment for stand this position to be now insisted the defendant, an application to open the upon.

judgment was refused, and this action

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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 ac

vent 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. Xor 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 deswering 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 hope that a partisan jury, or some partidelay or injury to any one. Instead of

can 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

guilty of wrongdoing. the contrary, I would say that an amendment 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 (emurrer 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. L'nul 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 favor of the plaintiff shall remain, this of the court's opinion in favor of the de- must be done by a writ of inquiry. Rule murrant, which with us is substantially XX, Section 4, of our Rules of the Comthe same thing * There is cer- mon Pleas Court, provides that "in all tainly nothing peculiar in a judgment on cases founded on contract and sounding demurrer; nor do I see any reason for a in damages, where the defendant does difference, whether the amendment is to not object, the prothonotary shall liquisustain or to overthrow the judgment, date the damages and enter judgment for provided it be indispensable to justice." the same; but if the defendant objects,

Of course, in this case, the application or if the action be founded on a tort, the is not to amend the pleadings; but it is damages shall be ascertained by a writ a request to open the judgment, so that of inquiry.” The practice of determinpleas may be entered, and, therefore, it ing the amount of damages in such cases is practically the same thing. I think in England seems to have been fairly well that this can legally be done, even after settled and defined. Ordinarily, in the judgment on demurrer has been entered. execution of the writ, the sheriff sat as a

Ought we, then, to exercise our grace: judge and tried by a jury the question, by so doing? It is certain that the de- and ascertained the damages which the

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plaintiff had sustained, subject to nearly A substantial dispute exists when a conthe same law and conditions as a trial byclusion of fact to be drawn from the testi

mony is one about which reasonable men jury at nisi prius. The jury consisted of night honestly differ. twelve men sumi

umoned by the sheriff for The orphans' court has jurisdiction of a this particular purpose. In this country, Custody, as executor, certain shares of the

petition averring that an executor has in his however, the practice ditters in the differ- capital stock of certain corporations which ent jurisdictions, and in some of the more pledged by the petitioner to the tes

tator in his life time, and which the executor states it is regulated by statute. Vo spe- contends are the unqualified property of the cial form is, however, provided in Penn- state, and praying for an order restraining sylvania, and I take it that we would liil further order of the court, and ordering

the executor from disposing of the same unhere be regulated by the practice of the him to deliver the same the petitioner common law. In Watkins v. Phillips, 2 petition avers the stock was pledged.

upon the payment of the debt for which the \\'h. 2009, 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 praving for an order restrainplease, may themselves assess the dam-ing John Greenaway, Jr., executor of the ages (i 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 land of the J. W. Gitt Company, and ormanner, there is a possibility of incon-vering him to transfer the same to the venience and injustice being done to the defendants. Then, too, counsel fairls 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 Niles & Neff, for demurrer. judgment, on condition that they with draw their demurrer and enter general

Allen C. Il'icst, contra. pleas.

Ross, J., February 9th, 1925.-The Rule made absolute.

petition states, in substance, that prior to

the 23rd of January, 1922, the petitioner O. C. of

York Co.

was the owner of one hundred and fiftyGreenaway's Estate three shares of the capital stock of the

“Ilanover Cordage Company," a corpo

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

That said shares of stock had been datory order on executor.

pledged by her, the petitioner, to the On a demurrer to a petition in the orphans' l "ilanover Savings I und Society" to secourt, raising the question of the jurisdiction of the court, the averments in the petition must be taken as true.

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" within the intendment of the act of assen

Hanover Savings Fund Society. bly providing for the sending of issues by i That about the same time, the said the orphans' court to the common pleas in certain cases in which there is a substan- | Hanover Savings Fund Society held a tial dispute. A fact is properly said to in dispute

certain 231 shares of the capital stock of when it is alleged by one party and denied the said llanover Cordage Company, by another, and boili with some

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,

cure the

be

show

of

reason;

a

mere

Hanover Savings Fund Society, she, the $13.000.00 petitioner, was to buy from the said "Hanover Pa.. Jan. 23rd, 1922. Hanover Savings Fund Society.

"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 i the sum of $13,000.00 six months from gave notice to the petitioner that she ihe 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 having deposited herewith as collatral 153 shares of stock of the Hanover security for the payment of this obligaCordage Company and said 130 shares tion or any renewal thereof, one hundred of stock of the J. 11. Gitt Company.

and thirty (130) shares of the capital

stock of the J. W. Gitt Company, certiIn order to keep her sid stock, an oral ticates 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 holdvi the llanover Cordage Company ander hereof shall give to the maker the 130 shares of stock of the J. 11. Gith 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 Llanover Cord

(late hereof. lu 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 hercoi shall have all the had agreed to sell to the petitioner, at the rights incidental to collateral pledged as total price of $70,000.

security. It the same time, an oral agreement

"(Signedl) B. BAER GITT. was made between the petitioner and Vitess: Lena Strickler.” Tohn Greenaway, Sr., that the said Greenaway woull loan the petitioner $70,000 to be used by said Greeneway *57.000.00 for the payment on behalf of the peti- "Ilanover, 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 orthat, immediately after said Greeneway der, the sum of tifty-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. 11. Giti security for the payment of this obligaCompany stock vere to be held as col- tion or any renewal thereof, three hunlateral for the payment of a note for the cred and eighty-four (381) 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 Llanover 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 $37,600, 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,

"Hirst: The said . 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:

Tor the tender of payment of interest for the said three months renewals to be

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