February 13, 1953
HOME BUILDING AND LOAN ASSOCIATION
Appeal, No. 139, Jan. T., 1952, from order of Court of Common Pleas No. 7 of Philadelphia County, Dec. T., 1950, No. 1440, in case of Home Building & Loan Association v. Vincent J. Houlihan. Order affirmed; reargument refused March 24, 1953.
Gilbert Cassidy, Jr., for appellant.
A. Walling Levin, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.
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OPINION BY MR. JUSTICE CHIDSEY
This is an appeal from a final order of the common pleas court revoking the opening of a judgment.
On December 20, 1950 the appellee, Home Building and Loan Association, entered judgment against appellant,
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Vincent J. Houlihan, by virtue of a warrant of attorney contained in a bond secured by a mortgage given by Houlihan to the Association. Houlihan petitioned to open the judgment. After answer by the Association and the taking of depositions, the lower court made an order on May 7, 1951 opening the judgment. On November 8, 1951, upon the Association's petition, the court issued a rule upon Houlihan "to show cause why the order previously entered in this case opening the judgment and staying all proceedings should not be revoked and the plaintiff given leave to proceed with execution, or in the alternative why the Court should not amend its Order opening the judgment by incorporating therein a statement of the issue or issues to be submitted to the jury.". After answer filed by Houlihan and argument, the court on January 4, 1952 made the following final order: "Rule absolute; former Order of Court opening judgment revoked and stricken from record. Rule to open Judgment dismissed. Plaintiff granted leave to proceed with execution. Defendant to pay costs.".
Appellant does not question the propriety of the lower court's decision on the merits but challenges only the power and authority of the lower court to vacate its earlier order opening the judgment. His Statement of Question Involved is: "Where no appeal was taken from a reviewable order of a lower Court opening judgment, which Court had jurisdiction, may such Court, on petition over six months after the entry of its order, revoke and strike the order from record, permit execution to issue and impose costs?".
While an appeal lies from an order opening a judgment, Act of May 20, 1891, P.L. 101, Section 1, 12 PS § 1100, an appeal at that stage of the proceedings is at the option of the party aggrieved and he may wait until a final order is entered and appeal from the latter. If no appeal is taken under the Act of 1891, the order
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opening the judgment remains interlocutory and may be subsequently amended, modified or revoked: See Schomaker v. Dean, 201 Pa. 439, 50 A. 923; Rosenblum, et al. v. Edwards, 137 Pa. Superior Ct. 33, 8 A.2d 468. In Markofski et ux. v. Yanks, 297 Pa. 74, 146 A. 569, where the judgment debtor appealed from an order by the court below amending an earlier order opening judgment, this Court said at p. 77: "We find no error in the order appealed from. The common law rule that a court cannot change its judgment after the term at which it was entered applies only to a final judgment and is inapplicable to interlocutory orders such as here in question. 'The rule against amending or vacating a judgment after expiration of the term at which it was rendered has no application to interlocutory judgments, and such judgments may be opened, amended, or vacated at any time while the proceedings remain in fieri, and before the final judgment': 34 C.J. 216, citing numerous authorities, including McCoy v. Porter, 17 S. & R. 59. The same is stated in 15 R.C.L. page 692, section 144, as follows: 'The general rule... denying to a court the power to control its judgments after the term applies only to final judgments, and where an order or judgment is interlocutory only, it may be set aside at a term of court subsequent to that at which it was entered.' This was an incomplete interlocutory order made in an equitable proceeding and left the whole matter open for the further action of the court. Furthermore, the discharge of a rule to open judgment will not prevent a renewal of the application at a subsequent term (see Johnson v. Nippert, 286 Pa. 175; Silberman & Co. v. Shuklansky et al., 172 Pa. 77; Kittanning Ins. Co. v. Adams, 8 Sadler 337), and why should an order making it absolute?".
The cases cited by appellant are inapposite. In all of them other than Beaver Valley Water Company v.
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party aggrieved by one of the listed interlocutory orders. It was not intended to take away from the court its traditional power to control an interlocutory order prior to the entry of a final order.
Order affirmed at appellant's cost.
Order affirmed at appellant's cost.
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