Appeal, No. 86, Jan. T., 1961, from judgment of Court of Common Pleas of Berks County, Dec. T., 1957, No. 93, in case of George W. Moore v. Joseph Quigley et al., Appeal dismissed.
George R. Eves, for appellant.
Forrest G. Schaeffer, Jr., with him Edelman & Schaeffer, for appellees.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. CHIEF JUSTICE JONES.
The plaintiff, George W. Moore, brought this action in trespass to recover damages from the defendants, Joseph Quigley and William H. Gunther, for injuries alleged to have been sustained by him as a result of a beating said to have been inflicted by the defendants in the course of their attempted repossession of an automobile of which Moore's father-in-law was the bailee. Each of the defendants filed a counterclaim against the plaintiff for damages growing out of this same altercation. The jury returned a verdict which after appropriate and unexcepted-to moulding by the trial judge in open court reads as follows: "Defendants are not liable to plaintiff, and plaintiff is not liable to defendants."
Judgment was forthwith entered on the verdict on the day of its rendition, viz., May 14, 1959, without leave of court. Within the time allowed therefor, the plaintiff filed a motion, with reasons, for a new trial, whereon the court granted a rule on the defendants to show cause, etc. The new trial motion was not disposed of, however, until June 15, 1960, a little over a year after judgment had been entered. On that date, the court entered an order discharging the rule and refusing a new trial. The plaintiff's ensuing appeal to this court was taken on September 2, 1960, and perfected by the filing of the certiorari in the court below on September 7, 1960. It is obvious that, if the judgment was validly entered on May 14, 1959, the plaintiff's appeal (necessarily from a judgment where a new trial is refused) was taken long after the three calendar months for appeal, prescribed by statute, had expired. This matter was not raised by the appellees in their brief nor mentioned during oral argument. But, it involves a question of such procedural importance that we cannot pass over it without
impliedly inviting the advent of a disserviceable and unwarranted precedent.
It is plain beyond question that the judgment in this case was entered prematurely. In Lance v. Bonnell, 105 Pa. 46, 47 (1884), this court stated, "The rule of practice in the court below required that the motion for a new trial should be submitted within four days from the rendition of the verdict, and until after the expiration of that time judgment could not be entered." The time allotted for filing new trial motions is regulated by local rule of court and not by statute. Whatever period may be fixed by local rule for the filing of such motions,*fn1 a judgment should not be entered until the time prescribed for such filing has expired,*fn2 and where a motion for a new trial is filed within the allotted time, judgment cannot, of course, be entered until the motion is disposed of by the court's refusal of a new trial. In Moravian Seminary v. Bethlehem Borough, 153 Pa. 583, 587, 26 Atl. 237 (1893), Mr. Chief Justice STERRETT, speaking for the court, declared that "The entry of judgment, on the day the verdict was rendered, was of course irregular and unauthorized, and could not stand in the way of a motion for new trial made within the prescribed time...." In that case the plaintiff sought a mandamus execution on a judgment entered on the day the verdict was rendered. The court below refused to award the execution, which action the plaintiff
assigned, inter alia, for error on appeal. With respect to that, as this court said, "it is sufficient to say that the plaintiff was not entitled to execution process without a valid judgment to support it. From what has already been said it sufficiently appears that it never had any such judgment." The reason for the nullity is ...