Summary
In Young, after holding that the lower court erred in sua sponte converting a petition to strike into a petition to open, the Court remanded the case so that the appellee could file a petition to open within twenty days. It is therefore apparent that neither Whatley nor Young supports sua sponte conversion without notice; indeed, by remanding, the Court insisted upon notice, for it thereby afforded the opposing party the opportunity to contest the merits of the petition to open.
Summary of this case from Kophazy v. KophazyOpinion
November 18, 1955.
January 3, 1956.
Appeals — Review — Judgments — Refusal to strike off — Scope of review.
1. Where the court below refuses to strike off a judgment but opens it and the plaintiff appeals, there is not before the appellate court the question of the validity of the ruling of the court below refusing to strike off the judgment. [465]
Practice — Judgment — Petition to strike off judgment — Opening judgment.
2. It is error for the court below to convert a rule to strike off a judgment into a rule to open it and make the rule to open absolute. [465]
3. Before a judgment may be opened it is necessary for the court to have before it a petition setting forth (1) due diligence, (2) the grounds for opening the judgment, and (3) the existence of a meritorious defense by averring the facts upon which the meritorious defense is based. [465-6]
4. Before a defendant can proceed to open a judgment he must first submit himself to the jurisdiction of the court in which the judgment was entered. [465-6]
Argued November 18, 1955. Before STERN, C. J., STEARNE, JONES, BELL, MUSMANNO and ARNOLD, JJ.
Appeal, No. 1, March T., 1956, from order of Court of Common Pleas of Beaver County, March T., 1953, No. 179, in case of Ernest Grant Young, George A. Tenos, John E. Tenos and Inez Tenos, doing business as Tenos Brothers v. Mathews Trucking Corporation. Order reversed.
Trespass for personal injuries and property damage.
Petition to strike off judgment dismissed, but order entered opening judgment entered by default and permitting defendant to answer on the merits, opinion by SOHN, J. Plaintiffs appealed.
Clyde P. Bailey, with him James B. Ceris, Thomas J. Dempsey and Weller, Wicks Wallace, for appellants.
Oran W. Panner, with him Thompson Bradshaw and Bradshaw Panner, for appellee.
This was a petition to strike off a judgment entered by default. It necessarily had to do with the regularity of the record under admitted facts, and could not be based upon any equities of the situation. The court declined to strike off the judgment but opened it, and the plaintiffs appealed.
This appeal is by the plaintiffs and not by the defendant, and there is not before this Court the validity of the ruling of the court below refusing to strike off the judgment: Bowser v. Citizens Light, Heat Power Company, 267 Pa. 483, 489, 110 A. 372; Miller v. Wayne Title Trust Company, 154 Pa. Super. 329, 338, 35 A.2d 786.
Without the consent or even the knowledge of the parties, the court below converted the rule to strike into a rule to open, and thereupon made the rule absolute. This was error: Hamborsky v. Magyar Presbyterian Church (No. 1), 78 Pa. Super. 519. See also Nixon v. Nixon, 329 Pa. 256, 263, 198 A. 154.
Before the court could open the judgment it was necessary for the petition to set forth (1) due diligence; (2) the grounds for opening the judgment; and (3) the existence of a meritorious defense, by averring the facts upon which the meritorious defense is based: Planters Nut and Chocolate Company v. Brown-Murray Co., Inc., 128 Pa. Super. 239, 244, 193 A. 381. See also Britton v. Continental Mining and Smelting Corporation, 366 Pa. 82, 84, 76 A.2d 625.
In addition, the appellee in the case at bar entered only a qualified appearance, and to open the judgment he must first submit himself to the jurisdiction of the court.
As was done in Rome Sales and Service Station v. Finch, 120 Pa. Super. 402, 404, 183 A. 54, we make the following order:
Order reversed, without prejudice to the appellee to present in 20 days a petition to the court below to open said judgment; that court to dispose of the same after taking whatever testimony may be necessary.