Pennock v. Kennedy

Opinion by Mr. Justice Williams, The question on which this motion depends must be considered in the light of the provisions of the act of 1887 abolishing the distinctions between forms of action. The act declares that the defendant in all actions of assumpsit shall, if required so to do by the plaintiff, reply to the plaintiff’s statement of his cause of action by an affidavit stating his defence. This affidavit serves a double purpose. It discloses to the court facts which if made to appear to the satisfaction of a jury would make a good defence, and so carries the case to a jury for determination. It is also a notice of special matter to the plaintiff. If it does not state a good defence the plaintiff may move for judgment for that reason. Upon such motion the question for the court is whether the facts set forth in the affidavit would, if shown, justify a verdict for the defendant. If they would not, then the plaintiff should have judgment in his favor. Pending this motion the defendant may amend his affidavit or file a new one, so as to get his defence fully before the court. Failing in this, he may, even after judgment has been entered against him, ask to have the judgment opened in order to let him in to an omitted or imperfectly stated defence, and this will be done upon a proper showing, under such terms as the court may think it just to impose. But it is due to the court in which the cause is pending, and to the orderly administration of justice, as well as to his adversary and himself, that he should state his defence fully in his affidavit and its amendments before it is finally passed upon by that court, for upon an appeal the question is over the correctness of the conclusion reached by the court below upon the facts before it. All the facts therefore pertinent to his defence that are within his knowledge should be presented to the court below, for the judgment rendered is, not that he shall answer over,- but that the plaintiff shall recover his demand. If upon an appeal the judgment in favor of the plaintiff is affirmed, the judgment [582] is final. It is conclusive of the plaintiff’s right to recover as against the facts alleged as a defence and the facts that might have been alleged. The defendant was called upon to answer the plaintiff’s demand. He might make, and it was his duty to make, a sufficient answer, if he had one to make. He cannot set up part of his facts and take the judgment of the court below and of this court upon their sufficiency, and, failing in both, begin over again and state another fact, and in case of judgment against him take another appeal, and so on. This ■ would be vexatious, dilatory and expensive to an intolerable degree. The rule in relation to judgments entered upon verdicts is well settled. Such a judgment is conclusive not only upon the items actually recovered for, but upon those for which the plaintiff might have recovered: Corbet v. Evans, 25 Pa. 310; Logan v. Caffrey, 30 Pa. 196; Alcott v. Hugus, 105 Pa. 350. The same rule is applied to matters of set-off. A defendant who fails to set off his cross demand against the plaintiff’s action is barred from recovering it by an independent suit. The judgment in this case had been rendered originally after a consideration of all the facts the defendant saw fit to state as constituting his defence. The defendant then appealed to this court and, after hearing, the judgment against him was affirmed. The right of the plaintiff to recover the demand stated by him was then finally adjudicated and the litigation was at an end. The judgment may be opened for matters arising subsequently, but, so far as the plaintiff’s right to recover in the action is concerned, the judgment of the common pleas, affirmed by this court, is an end to the controversy. We do not say that circumstances might not be disclosed that would justify a chancellor in enjoining the plaintiff against the collection of his judgment, but we do say that no such circumstances are disclosed in this case. The appellant relies upon the act of 1891, P. L. 101, as authority for the opening of a judgment under the circumstances existing in this case. That act does not extend the power of the common pleas to open, vacate or strike off a judgment, but simply extends the right of appeal to some orders which had been previously regarded as within the discretionary powers of the court in which the judgment had been obtained. Philadel [583] phia v. Kates, 150 Pa. 30, gave no such construction to the act of 1891 as the appellant contends for. The subject under discussion in the passage quoted from the opinion of our brother Mitchell in that case relates to the exercise of the power of the common pleas to open a judgment, and the considerations that should regulate its exercise, so that no injustice should be done to the plaintiff by such order if made. We are clearly of opinion that the court below was right in refusing the application to open the judgment in this case, and in holding that a judgment, rendered in the common pleas and affirmed by this court on appeal, is conclusive of the matters that were actually considered, and those that might have been considered, if the defendant had exercised the vigilance the law requires of parties litigant in the preparation and trial of their cases. The defendant had no right upon the facts now presented to a second hearing in the court below, and he has no right to a second hearing in this court. The appeal should therefore be quashed.