Madlem's Appeal

Mr. Justice Paxson delivered the opinion of the court, The decree in this case was entered in the court below by the additional law judge, the president judge being present and dissenting. The court was therefore equally divided, and the rule in such cases is that no valid order or decree can be made. If there is a motion before the court, it falls. This is the rule everywhere, and it requires no argument to vindicate it. Equal divisions sometimes occur in this court, owing to the absence of one- of its members. The only order we can make in such a case is to affirm the judgment or decree of the court below. The plaintiff in error, or appellant, who is the actor, fails, and his motion to reverse falls to the ground. An affirmance here by a divided court means merely that the judgment or decree below cannot be disturbed. In order to reach his conclusion, the learned judge who entered the decree below, reversed the Master and set aside his findings of fact. His decree included an order for a perpetual injunction, and the disposition of the costs. To all this the president judge, who possesses at least equal power, dissented. He had an equal right to enter a decree embodying liis own views of the ease. We would then have had the unusual case of conflicting orders issued out of the same court. To state such a proposition as this is to answer it. The learned judge (A. L. J.) below was evidently misled by the case of Cahill v. Benn, 6 Binney 99. It does not sustain his position. In that case there had been a trial at law and a verdict for the plaintiff. The defendant moved for a new trial, and upon this motion the coui’t were equally divided. The motion necessarily fell. Afterwards, the plaintiff’s counsel moved for judgment, and two judges being present, one ordered judgment as a matter of course, and the other objected to the entry. The prothonotary entered judgment, and upon a writ of error the judgment was sustained by this court. It is manifest that'the plaintiff was entitled as of course to judgment upon the verdict after the motion for a new trial failed, and it would have been wrong to have denied it. This was the view taken by Tilghman, C. J., who delivered the opinion of the [587] court, iu which he said : “We cannot suppose that Judge Campbell meant to act with such impropriety as to arrest the regular course of law, by forbidding tlie prothonotary to make a proper entry. We rather think that he wished his opinion against the verdict to be entered on the record, and to leave the rest to the law. Any other proceeding would have been highly improper, and we wall not, without necessity, suppose that Judge Campbell intended to do what was wrong.” The distinction between entering a judgment pro forma upon a verdict, to which the party was entitled as of course, and granting a decree in equity, is so palpable that we need not further discuss the ease. The decree below was improvidently and unlawfully entered, and must be set aside. This leaves the case precisely as if no decree had been made. If tlie learned judges below cannot agree upon a proper decree, they have the power to call upon a judge from another district to decide the case for them. But until we have a lawful decree we cannot reach the merits. Tlie decree is reversed at the costs of the appellees.