Norfolk & Western Railway Co. v. Swift

Per Curiam, This case has been here twice before. Little need be added to what was then said by this court. The cases cited by appellant’s counsel do not involve the construction of the Act of April 18, 1874, P. L. 64. But that subject was directly before the Supreme Court in Wood v. Kerkeslager, 227 Pa. 536, and after elaborate consideration it was held: “ ‘Other legal or equitable cause’ which a defendant may show to the court below why judgment should not be entered against him after the appellate court has held his affidavit of defense to be insufficient is a cause which did not exist when the affidavit of defense was filed, or, if it did exist, the defendant was ignorant of it through no fault of his own.” This construction of the act was followed and applied by this court when the case was here the second time: 59 Pa. Superior Ct. 603. The defendant’s motion, made in the court below after the record was remitted, to have its supplemental affidavit of June 8, 1914, marked as filed by the leave óf a court nunc pro tunc does not change the situation, as will be seen by a perusal of Judge [575] Head’s opinion. But we are asked, in effect, to reconsider and overrule that decision, and in support of this it is argued that what the Supreme Court said upon the subject in Wood v. Kerkeslager was “beside the question that was before the court for decision.” It is true, as shown by the opinion of the present Chief Justice, the court could have affirmed the judgment without expressing an opinion upon the subject now under discussion. It is to be observed, however, that the question was not a merely collateral one, but was directly raised by the record; it does not detract from the “binding authority” of the court’s deliberate and thoroughly considered decision of it that the judgment could have been affirmed on another ground: Orkney Street, 9 Pa. Superior Ct. 604, affirmed by Supreme Court in 194 Pa. 425. As was remarked in the case just cited, it is more in accordance with sound principle to say that the general rule upon the subject laid down by the Supreme Court in such a case ought to be followed by all the other courts of the State until it is modified or qualified, unless it can be shown that the particular case for decision differs in essential facts, is clearly not within the reason of the rule, and therefore, presumably, was not intended to be embraced within the rule itself. The judgment is affirmed.