#### Conrad *versus*The Commercial Mutual Insurance Company.

1. A case cannot be tried a second time when the record shows a former verdict and judgment which had not been reversed or set aside, especially when the judgment was set up as a bar to the action.

2. In an issue in an attachment execution, between the plaintiff and defendant, there was a verdict for the defendant; after a rule a new trial was refused. No question was reserved; but the court entered judgment for the plaintiff *non obstante veredicto.*This judgment was reversed by the Supreme Court. The defendant then pleaded the judgment on the verdict in bar. The case was tried, and a verdict- found for the plaintiff. A demurrer was after-wards filed *nunc pro tune*to the plea in bar, and judgment entered on the demurrer for the plaintiff. *Held,*to be error.

3. After the record was remitted, the court, on rule by plaintiff, struck off the first judgment without setting aside the verdict. *Held,*to be error.

4. Whilst the verdict stood the plaintiff could not have a new trial, and, under the order to strike off the judgment, the defendant could have no advantage of the verdict.

5. The court had no power to set aside the verdict and grant a new trial more ' than five years from the refusal of a new trial.

6. Such power would be perilous to the right of suitors, and subversive of well-established principles essential to the administration of justice.

7. Huston *v.*Mitchell, 14 S. & R.j 307, followed.

February 6th, 1871,

before Thompson, C. J., Agnew, Sharswood, and Williams, JJ. Read, J., Nisi Prius.

Error to tbe District Court of Philadelphia, of July Term, 1870, No. 172.

The inception of the case is reported in 4 P. F. Smith, 873.

It was an attachment execution by the Commercial Insurance Company against Osborn Conrad, defendant, and the Bank of Penn Township, garnishees. It was issued May 10th, 1864.

After various proceedings, including answers by the garnishees, and a special plea by defendant, that after the recovery of the judgment, the directors of the plaintiff" authorized a committee of their number to settle claims, and that the directors signed an agreement that, inasmuch as the defendant had received no value for the note on which the judgment was founded, they would receive 10 per cent, of the claim in full satisfaction ; that defendant tendered to the treasurer,' and also to the solicitor of the plaintiff, the 10 per cent., which they declined to receive, and he afterwards paid that amount to Daniel Smith, one of the committee authorized to make settlement, and he gave defendant a receipt therefor in full satisfaction, to be entered on the record, etc.; The case was at issue on the 20th of September, 1865, by the filing of the plaintiff’s replication to the defendant’s pleas. On the 24th of January, 1866, there was a verdict for the defendant. On the 27th of January the plaintiff" moved for *67a new trial, and also took a rule for judgment *non obstante veredicto.*On the 8th of March, 1866, the rule for a new trial was discharged; on the 11th of March judgment was entered for the defendant on the verdict. On the 24th of March the rule for judgment for the plaintiff *non obstante veredicto*was made absolute, and judgment was entered for the plaintiff

On the removal of the record to the Supreme Court the judgment was reversed February 25th, 1867, because the issues having all been determined for the defendant, the judgment was entered without any question having been reserved. A procedendo was awarded.

On 26th of October, 1867, in the District Court, the plaintiff obtained a rule to strike off one of defendant’s pleas. On the 9th of November the rule was discharged. On the 14th of December, after a rule, the plaintiff had leave to withdraw his replication. On the 18th of December the plaintiff filed a replication and demurrer. On the 11th of April plaintiff had leave to file a demurrer to the plea of payment. On the 3d of January, 1870, the defendant filed a special plea that on the 11th of March, 1866, he ’obtained a final judgment, which was still unappealed from and unreversed, etc. The case was tried the same day, and a verdict rendered for the plaintiff for $1117.92. On the 7th, defendant moved for a new trial, and also for judgment on his special plea of January 3d, 1870. .He also moved for judgment on the whole record *non obstante veredicto.*March 10th, 1870, rule for a new trial was granted. June 27th the court permits a demurrer to the plea of payment to be filed *nunc pro tune.*Same day demurrer to special plea filed. Same day rule (for new trial) discharged, and judgment for plaintiff' on the demurrer.

The defendant sued out a writ of error.

He assigned for error:

1. The court, on the 8th of March, 1866, having refused the rule for judgment for plaintiff' *non obstante*veredicto, and judgment having been entered in favor of the defendant on the 24th of March, 1866, judgment could not be entered for plaintiff' *non obstante veredicto.*

2. The Supreme Court, having reversed the judgment of the 24th of March, 1866, for error, the judgment of the 10th of March, 1866, was and is in full force against the plaintiff.

3. While there was a valid judgment on a verdict in favor of the defendants of the 10th of March, 1866, unreversed or appealed from, there could be no other or further trial on the merits of the controversy between the parties.

4. The court erred on the 8th of April, 1868, in permitting plaintiff to file a demurrer to the special plea of payment, *68when the merits of the case on that plea had been passed upon by the court and jury, and a verdict and judgment rendered in favor of the defendant on the same.

5. The court erred in directing a jury to be called until there was an issue at law or in fact joined on the special plea filed on the 3d of January, 1870.

6. The court erred in calling a jury to try the issues joined between the parties on the 3d of January, 1870, when there had been *h*verdict and judgment rendered between the parties, which remained unreversed, altered, or in any way set aside.

7. The court erred in not rendering a judgment in favor of the defendants, on the special plea filed upon the 3d of January, 1870, when the motion was made on the 7th.

8. The court erred on the 7th of January, 1870, in not rendering a judgment in favor of the defendant on the whole record, “ *non obstante veredicto.”*

9. The court erred on the 27th of June, 1870, in permitting a demurrer to the special plea of payment to be filed *nunc pro*tunc, after a verdict had been rendered in the ease.

10. The court erred in rendering a judgment in favor of the plaintiff' on the special plea of payment filed by the defendants, after there had been a verdict and judgment in their favor on said plea, which had not been reversed or set aside.

11. The judgment, on the 8th of July, upon the verdict in favor of the plaintiff is erroneous and illegal.

.7. *A. Simpson*and *A. V.*Parsons, for plaintiff in error.

One verdict, and judgment unreversed, is conclusive; the reversal in the Supreme Court was a confirmation of the judgment on the verdict of June 24th, 1866. The merits of the first trial cannot be examined in this writ of error. The first judgment was a bar to the whole action: 1 Chitty’s Pl., 471; Marsh *v.*Pier, 4 Rawle, 273 ; Hess *v.*Heeble, 4 S. & R., 246 ; Kean *v.*McKinsey, 2 Barr, 31; Mann *v.*Drexel, Id., 210; Souter *v.*Baymore, 7 Id., 415; Merrick’s Est., 5 W. *&*S., 9 ; Muirhead *v.*Kirkpatrick, Id., 506; Croft *v.*Steele, 6 Watts, 373 ; Duffy *v.*Lytle, 5 Id., 120.

*M. A. Dropsie,*for defendant in error.

Mr. Justice Williams delivered the opinion of the court, February 27th, 1871.

This is a novel record. The case was tried on the 24th of January, 1866, and a verdict rendered for the defendants. *69On the 27th of January the plaintiff moved for a rule for a new trial, and obtained a rule for judgment *non obstante veredicto.*On the 8th of March the rule for a new trial was refused, and on the 10th a judgment was entered on the verdict in favor of the defendant. On the 24th of March, 1866, the rule for judgment *non obstante veredicto*was made absolute, and judgment was accordingly entered for the plaintiff. The record was then removed to this court by writ of error, and the judgment for the plaintiff *non obstante veredicto*was reversed, and the record remitted with directions to proceed, etc. The case is reported in 4 P. F. Smith, 373 ; and we there said, “ As the record is presented to us, it exhibits a judgment given against the defendant, notwithstanding all the issues were determined in his favor, and this without any question reserved. This was, of course, irregular.” On the 4th of April, 1868, the record was returned to the District Court, and after sundry rules and other proceedings, none of which affected the validity of the judgment in favor-of the defendant, the case was again tried, and a verdict rendered for the plaintiff, upon which judgment was entered July 8th, 1870. Here, then, we have, as the record shows, two inconsistent verdicts and judgments in the same case,— one for the defendants and one for the plaintiff. It is not easy to see how the District Court could have permitted the cause to be tried the second time when the record showed a verdict and judgment in favor of the defendants which had not been reversed or set aside; especially as the judgment was set up as a bar to the plaintiff’s right to proceed to a second trial. It is manifest that all the proceedings which have taken place in the court below since the former writ of error have been grossly irregular and erroneous.

And now, February 27th, 1871: It is ordered, adjudged, and decreed, that the judgment entered by the District Court in favor of the plaintiff below, the defendant in error, on the 8th of July, 1870, be and the same is hereby reversed, and that the record be remitted to the said court, with directions to proceed, etc.

On the 2d of March, 1871, the remittitur certifying the foregoing reversal, with the procedendo, was filed. The records of the District Court afterwards show the following entry:

“ June 7th, 1871. It appearing to the court that on March 10th, 1866, the prothonotary entered a j udgment for the defendant, or garnishee, while, a rule for judgment *non obstante veredicto*in favor of plaintiff was pending and undetermined, which rule was subsequently determined in favor of plain*70tiff', the court grant a rule to show cause why judgment of March 10th, 1866, should not be stricken off'.

“July 1st, 1871. Rule absolute.”

The defendant, Conrad, sued out a writ of error, No. 153, to July Term, 1871, and assigned the following errors :

1. Setting aside the judgment rendered in favor of the defendant on-the 10th day of March, 1866.

2. Striking off, on the. 1st day of July, 1871, a judgment which had been rendered in favor of the defendant on the verdict of a jury more than five years.

3. The District Court had no power or authority to strike off a judgment rendered in favor of the defendant five years and more before the order was made striking it off'.

4. Striking off' a valid judgment on a verdict without cause.

5. Stating in the rule to show cause, under the date of the 7th of June, 1871, “that it appearing to the court that on March 10th, 1866, the prothonotary entered a judgment for the defendant or garnishee, while a rulé for judgment, etc., was pending,” as there is nothing stated on the record, nor in the cause, to show but that that entry of judgment was made by the order of the court, and not by the prothonotary without an order from the court.

6. Disregarding the judgment of the Supreme Court made on the 25th of February, 1867, in this cause.

7. Setting aside and striking off' a judgment in favor of the defendant below which had. twice been sustained by the Supreme Court.

8. The order made by the court below, on the 1st day of July, 1871, was illegal, and without authority of law.

9. Deciding this cause when it had been before fully determined on the facts by a jury, and a judgment upon the law by the court after full argument upon the law and the evidence.

The case was heard in the Supreme Court, February 19th, 1872, before Agnew, Sharswood, and Williams, JJ., Thompson, C. J., at Nisi Prius

*J. A. Simpson*and *A. V. Parsons,*for plaintiff in error.

The judgment of March 10th, 1866, was regular, and the court had no right strike it off: Breden *v.*Gilliland, 17 P. F. Smith, 34; Catlin v. Robinson, 2 Watts, 380. The Court of Common Pleas has no right to set aside a judgment entered on a verdict without setting aside the verdict: Huston *v.*Mitchell, 14 S. & R., 307 ; Ewing *v.*Tees, 1 Binney, 455; Stephens *v.*Cowan, 6 Watts, 513 ; Mathers *v.*Patterson, 9 Casey, 487. A judgment obtained at a former court, however erroneous, cannot be set aside unless en*71tered by fraud, misprision of the clerk, or the like: Medford *v.*Dorsey, 2 Wash. C. C. R., 433. The Court of Common Pleas cannot summarily strike off a judgment regularly entered nor compel it to be satisfied, but may order an issue to try whether it has been paid: Horner *v.*Hower, 3 Wright, 126. The first judgment was a bar to the whole action : 1 Chitty Pl., 471.

*M. A.*Dropsie, for defendant in error.

This judgment was reversed with directions to the latter court “ to proceed, etc.” How it was to proceed was for the court below. This judgment was by the misprision of the clerk and could be amended: Boberts’s Dig., “ Amendments,” 28-35 ; Medford *v.*Dorsey, *supra;*Sweney *v.*Delany, 1 Barr, 320 ; Commonwealth *v.*Hultz, 6 Id., 469; Rhoads *v.*Commonwealth, 3 Harris, 276 ; Smith *v.*Hood, 1 Casey, 218.

Mr. Justice Williams

delivered the opinion of the court, May 13th, 1872.

This anomalous record is brought before us for the third time. When first here, the judgment in favor of the plaintiffs *non obstante veredicto*ivas reversed, because all the issues were found for the defendant, arid no question of law was reserved: 4 P. F. Smith, 373 ; and when last here the judgment on the verdict subsequently found in favor of the plaintiffs was reversed because the record showed a former judgment and verdict in favor of the defendant which had not been reversed or set aside. The complaint now is that this judgment, entered March 10th, 1866, on the verdict in favor of the defendant, was improperly stricken off by the District'Court by an order made the 1st of July, 1871. It is clear that the court had no power to strike off the judgment if it was regularly entered, without setting aside the verdict: Huston *v.*Mitchell, 14 S. & R., 307. The order, whether so intended or not, puts an end to all further action in the case. As long as the verdict stands the plaintiff can have no new trial; and while the order remains in force, the defendant can have no benefit or advantage of the verdict. If, as suggested, the verdict was irregularly entered while the rule for judgment *non obstante veredicto*was pending, the irregularity was cured by the reversal of that judgment, and it was as much error to strike off the judgment so entered for the defendant as if it had been entered when no rule was pending. On the face of the record the defendant was entitled to judgment on the verdict, and could not be rightfully deprived of it while the verdict was permitted to stand. Nor had the.court power to set aside the verdict *72and grant a new trial, if such was the intention in striking off the judgment, after the lapse of more than five years from the refusal of the rule for a new trial. If the court could set aside the judgment and verdict in this case, it rpight set aside the verdict and judgment in any other case. It Deeds no argument to show that the court has no such power, and could not be safely intrusted with its exercise. It would not only be -perilous to the rights of suitors, but subversive of well-established principles essential to the administration of justice.

The order to strike off the judgment must therefore be reversed, and the record remitted to be further proceeded in according to law.

Order reversed and record remitted, etc.