Appeal, No. 9, Jan. T., 1952, from order of Court of Common Pleas of Delaware County, Sept. T., 1948, No. 204, in case of John J. Yarnall v. Yorkshire Worsted Mills. Order affirmed.
James N. Robertson, with him Edward Rocap, and Rocap & Rocap, for appellant.
Gilbert W. Oswald, with him J. H. Ward Hinksoin, and Schnader, Harrison, Segal & Lewis, for appellee.
Before Drew, C.j., Stern, Stearne, Bell, Chidsey and Musmanno, JJ.
OPINION BY MR. JUSTICE CHIDSEY
On May 3, 1949 a stipulation settling a suit in replevin was entered into signed by then counsel for appellant and counsel for appellee and approved by President Judge ERVIN of Delaware County. Appellant on January 12, 1951 filed a petition to set aside this stipulation and reopen the case and a rule was granted. On January 22, 1951 the rule which was previously granted was refused without an answer being filed or a hearing held. This appeal followed.
From the allegations in the petition and record papers the following facts appear. On October 1, 1948 an action in replevin was instituted by appellant against appellee for 12 looms which were in the possession of the latter. Separate counts for damages and for an accounting were also asked in the complaint. After a petition requesting the production of certain books and records of appellee was dismissed, the case came on for trial and after the trial had proceeded for a time, the above mentioned stipulation was executed. Under the terms of the stipulation the appellant was to receive $5,000 within one week and upon payment of $25,308 to the appellee within 90 days he was to receive the looms. If, however, he did not pay such amount within 90 days, the looms were to become the property of appellee.
In his petition appellant alleges that his counsel told him that he was threatened with a non-suit and that
appellee offered to settle "for $5,000.00 and the machinery"; that upon recommendation of his counsel he agreed to such offer; that his counsel told him to go to a restaurant where they met; that at that time appellant for the first time "... saw the stipulation and on the same day voiced his objections to paying the sum required for the machinery within 90 days."; and that the $5,000 check was received by his counsel and cashed "against [his] directions" and that $3,250 of such amount was turned over to him.
About two weeks after the trial petitioner wrote to the trial judge and requested a conference with regard to the settlement but did not include in such letter any objections to the stipulation or the authority of his counsel to execute it. He later withdrew his request for this conference.
The next action taken by appellant was on January 27, 1950, eight months later, when with new (present) counsel acting for him, he filed a petition to set aside the settlement and reopen the case on the grounds that the testimony given by an officer of the defendant "called for cross-examination) "approached perjury." The lower court after answer denied this petition on March 8, 1950, and nothing was done by appellant until January 12, 1951 when ...