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.
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,
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 ...