McCready v. Gans

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.