Rutherford v. Pope

An exception not signed or sealed by the judge, purporting to -set out certain rules of court, is not suiEcient to show this court what such rules •are. During the term at which a judgment is rendered it is subject to the control of the court, and no appeal lies from an order made, during the term, striking out a judgment by default and reinstating the case.

Appeal from the Court of Common Pleas. An action of assumpsit was brought, on the 3rd of December 1857, by the appellant, the endorsee, against the appellees, executors of Wm. Gardner the maker of a promissory note for $361, The defendants were summoned but did not appear, and a judgment by default for want of a plea was entered on the 11th of June 1858, and on the 21st of the same month, the note, protest and affidavit of the planliff having been filed, the judgment was extended by the court for $394.61 and costs. Afterwards, during the same term of the court, to wit, on the 11th of August 1858, the defendants, by their attorney, filed a motion to have the judgment by default stricken out, upon the grounds that a former suit upon the same cause of action between the same parties had resulted in the defeat of the plaintiff, and that they had a valid defence consisting of an account in bar. Whereupon, on the 7th of September 185.8, the court (Martin, special Judge) ordered the judgment to be stricken out and the cause to be reinstated. The defendants then regularly appeared and filed their pleas. The plaintiff then, by his attorney, filed in the cause what the record calls a bill of exceptions, in Which he excepts to the order of the court striking out the judgment, for various reasons, and among others that the motion to strike out was made in violation of certain rules of the court, which are set out in the exception. This bill oí exceptions, however, was not signed or sealed by the judge. The plaintiff then appealed from the order striking out the judgment.