American Soda Water Co. v. Taggart

Citations

• 46 Pa. Super. 123
• 1911 Pa. Super. LEXIS 242

Syllabus

<p>Judgment — Opening judgment — Appeals—Act of May SO, 1891, P. L. 101.</p> <p>1. While the Act of May 20,1891, P. L. 101, gives a right of appeal in applications to open or strike off judgments it was not intended to give the defendant in a judgment obtained in an adverse proceeding, which at the worst is only erroneous and not void, two opportunities to obtain a reversal.</p> <p>2. Where a judgment has been entered in replevin for want of a sufficient affidavit of defense, and more than two years afterwards the court considers and discharges a rule to open judgment no appeal lies from the ffist order of the court, inasmuch as more than six months have elapsed from the entry of such order.</p> <p>3. A petition to open a judgment in replevin entered adversely for want of a sufficient affidavit of defense, is fatally defective if it does not allege that the facts set up as a defense were after-discovered, and could not have been discovered by the defendant by the exercise of reasonable diligence before judgment was entered.</p> <p>Judgment — Interlocutory judgment — Writ of inquiry — Assessment of damages.</p> <p>4. While the Act of May 22, 1722, 1 Sm. L., 131, authorizes the court upon the application of the plaintiff in an interlocutory judgment to make an order in the nature of a writ of inquiry to charge the jury attending at the same or next court after such judgment is given, to inquire of the damages and costs sustained by the plaintiff in such action, it does not give the defendant a right to demand that the damages be assessed in that way instead of by a writ of inquiry directed to the sheriff.</p> <p>5. An order discharging a rule to show cause why a sheriff’s jury appointed to assess damages under a writ of inquiry should not consider evidence of payment made before judgment as well as evidence of set-off for damages suffered by defendant, is a mere interlocutory order from which no appeal lies.</p>