McCready v. Gans

Supreme Court of Pennsylvania November 7, 1913

McCready v. Gans, 242 Pa. 364 (Pa. 1913)

89 A. 459; 1913 Pa. LEXIS 888

Brown, Elkin, Fell, Mestrezat, Potter

Opinion of the Court

Per Curiam,

The order of the court below sustaining the demurrer, entered July 16, 1912, was a final judgment in favor of the defendants, and must be tested by the record as it stood at that time. Until that judgment was opened or vacated, no amendment of the statement of claim could be allowed: Stephens v. Myers, 12 Pa. 302; Wood v. Anderson, 25 Pa. 407; Green v. Worth Bros., 223 Pa. 604. In the case of a judgment entered adversely after a hearing or trial it is settled that the application to open, or vacate or for a rehearing must be made before the end of the term at which the judgment was entered: King v. Brooks, 72 Pa. 363. In the present case the application was for a rehearing after judgment had been entered on the demurrer, and not to open or vacate that judgment. The refusal of an application in the nature of a request for a rehearing in the court below is not reviewable on appeal: Keim’s App., 27 Pa. 42; Kepner’s App., 94 Pa. 74; Roddy’s App., 99 Pa. 9. For these reasons the second assignment of error must be dismissed. This leaves nothing for our consideration except the question whether the court erred in sustaining the demurrer to the statement as it stood July 16, *3721912, all subsequent proceedings: being disregarded. We are not convinced that the court erred in sustaining the demurrer to the original statement. It was defective in the manner and for the reasons pointed out by the court below and for other reasons urged by counsel for appellees in the argument of the case here. Upon the record as it stands the contentions of the appellants cannot be sustained.

Appeal dismissed without prejudice. Costs to be paid by appellants.

Reference

Cited By: 16 cases
Status: Published
Syllabus: Practice, O. P. — Statement of claim — Demurrer—Judgment— Opening judgment — Amendment—Rehearing—Appeal. 1. Where a demurrer to a statement of claim has been sustained and judgment has been entered for the defendant no amendment can be allowed until the judgment has been opened or vacated. 2. An application to open or vacate a judgment entered adversely after a hearing or trial must be made before the end of the term at which the judgment is entered. '3. The refusal of an application for a rehearing after judgment has been entered on demurrer in favor of the defendant is not reviewable on appeal. Statements of claim — Defective statements — 0opy of instrument sued upon — Variance—Demurrer. 4. A statement of claim alleged that the plaintiffs had executed with the defendants a contract to underwrite an issue of bonds of a railway company and that a copy of such contract was attached to the statement. It appeared from such copy that the contract should not be binding on any signer until bonds in the sum of $565,000 had been subscribed for and that the defendants had signed as subscribers; but the copy did not show any signatures except those of the defendants, who had not subscribed for the whole issue. It further appeared that the copy of the contract attached to the statement was incomplete. The statement did not show performance or such action by the plaintiffs under the contract as would sustain the right of action. The court sustained defendants’ demurrer to the statement and entered judgment for the defendants, and subsequently dismissed plaintiffs’ petition for a rehearing and the right to amend the statement. Held, no error.