The evening telegraph. [volume] (Philadelphia [Pa.]) 1864-1918, 1870-05-03


exercised. In Dyott VS.. The Commonwealth 6
Wharton, S0) the doctrine laid down is applica-
BILE to q judgment in the Quarter Sessions upon
verdict of guilty, and is in some respects
analogous to the case OF Commonwealth VS..
Maloy q P. f. Smith, 29D.
Catlin Vs. Smith, 2 Watts, $40, is the strongest
Pennsylvania decision cited against the power
of the court to 90 back upon its judgment and
open il for the correction of errors and mistakes
But there three years after judgment the rule to
open was granted, and at the succeeding term
after that was made absolute. The decision of
the court was that the day of discretion was
past. 1t was admitted that the opening of a
judgment was not the matter for correction on a
writ of error, and that only for excess of power
such order could be annulled in error. To the
same purpose are the cases of Baily VS.. Mus
grave, 2 s. & R., 22O, and Huston We. Mitchell,
IA s. d r., 310 In Catlin VS.. Robinson, Gibson,
G. j., expresses himself in very strong terms
against the exercise of the power, remarking
''The act imposing q limitation on writs of error
would be of little account, If an inferior court
might do at discretion what a court of last re-
sort dare not do by the exercise of its legitimate
prerogatiVe," In Freeman w. Franah, 12 Com.
Bench, 413 it is laid down that only where delay
in signing judgment arises from the act of the
court, can 1t be entered, nttnc pro tune, two
terms after verdict. But admitting the full
force of the principle which is invoked as re-
strictive of the power of the court over judg-
ment at a subsequent term, we do not think that
is to be applied with the same strictness if at
all, to statutory proceeding in the nature of a
public inquiry, complaining of public wrong,
in which, though individual citizens are in
terested, the community have a much
greater concern, and in which the
court in error cannot correct
mistake upon the merits, committed by the
court below. If relief for this cause cannot be
given by the tribunal in which the proceeding
is instituted, which alone can decide upon the
testimony and enter judgment upon the facts as
they find them, then there is not only no remedy
for the suitor, but what is even worse, the court
chained
itself even when the mistake is beyond question.
From such q conclusion of law, founded upon
state of facts entirely dissimilar from any which
can arise in an election contest, we dissent; and
if it has heretofore been thought by the Court
that such fetters bind them when an appeal is
made for relief against error in fact made by the
Court, it is time that such letters were rent
asunder and the necessary freedom to correct
such mistakes proclaimed. The liberty must
however, have its limits. The application, on
its face, must show that it is well founded. 1t
is strictly an appeal to the discretion of the
Court, and may be allowed or refused on the
exercise of sound discretion. 1t is proceed
ing which is not to be favored except upon the
plainest exhibition of a prirad facie case, re-
quiring the interposition of the Court to correct
an 3rror A contrary course tends to prolong
controversy in regard to the title to Office in
which the interests of the public are placed in
peril. A strict adherence to rule should be
required in every such application.
But the conclusion at which we have arrived
as to our power to reconsider and reform our
decree is not without authority to support it,
In Cannon VS.. Reynolds, Ellis, and Blackburn,
301, Lord Campbell asserts a general equity
jurisdiction of the Court over their judgments
Colridge, Justice. concurred and added that
the practice was near rnowinveterate and of every
day occurrence, to set aside Judgment, whether
regular or irregular, whether after execution or
before, which, he remarked, showed their juris-
diction to do this Crompton, Justice, agreed
that the power could be exercised, but the appli-
cation must be made within a reasonable time
after judgment is acted on.
In Usher VS.. Dansey, Maui u Seliom, "a, an
amendment was allowed after judgment was
given in former term, and writ of error was
brought thereon. and pending error The amend
ment was to correct misprision of the clerk.
The Court In Longfeld and Townsend Excq.
r. Qrish), 20, in the case of Galwas VS.. Banon,
allowed petition to amend notes of Decree with
ont Withdrawing appeal.
In this State 1t has been held that, after error
brought on a judgment of the District Court or
Common Pleas, the application for leave to
amend may be made to each of those courts,
while the record remains in it, though the writ
of error has been shown to the court. irony
ys. Stone, Dallas, 1S4; same case, l Yates, 1856.
The amendment was allowed on the authority
of Fleetwood VS.. Wright, Henry Blackstone, 643.
In Spackman vs. Byers, 8. and R., 1856, the
record was sent back for amendment. Rhoads
cides that amendment can be allowed
after term at which judgment is
signed. Gibson, c. j., says the notion
to the contrary is exploded, and has yielded to
necessity, reason, and common sense. The
court in which judgment is entered may allow
amendment of the record, even after error as
between the parties. Crutchen VS.. Com, 6
| Whar. $40; Chewes' Appeal 8 w. s. s., 152
See also Dallas, 1885; Binney, 60; 5
| Burr, 273.
These authorities make it abundantly clear
that the Court possessed the most ample power
| to allow the petition of Mr.. Sheppard to be
filed, and some of them would seem to indicate
| that the correction of errors and mistakes, if
| not correction of the judgment, might have
| been made after certiorari service, and before
| the record of the cause was sent up. But the
latest case, and the one strictly analo-
! gous to that which we are now
considering, of Ewing VS.. Thompson, holds the
| contrary doctrine, asserting that our proceeding
| would have been void, if, indeed, such action
| would not have placed us in contempt We
were, therefore, required to rest until the deci-
sion of the Supreme Court upon the case as it
was heard on oertiOrGri, and we thought it was
but respectful and proper that we should pause
while it was before Judge Read upon motion
for a special injunction to restrain Mr. Sheppard
| from further proceeding to prosecute to hearing
and decree the matters set up in his petition.
The way is now clear for such action as this
court after mature consideration, has decided
ought to be taken in order to ascertain the
truth of the averments contained in tue petition
to reform our decree.
Upon the pleadings we have nothing before
us but the original and amended petitions oi
| Mr.. Sheppard. Mr. Gibbons disclaiming upon
the last argument in open court, all response
bility for the paper, entitled answers to Mr.
Sheppard's petitions for a rehearing, which were
before the court upon the former argument
Following the disavowal of Mr.. Gibbons, these
answers were, with leave of the court, with
drawn by Mr.. Mann, who was counsel for Mr.
Gibbons. We might therefore content ourselves