Opinion
January 8, 1946.
March 25, 1946.
Appeals — Order refusing new trial — Absence during trial — Instructions of counsel.
In a suit in ejectment in which it appeared that the case was tried and a verdict entered for the plaintiff in the absence of defendant and her counsel, and defendant thereafter moved for a new trial on the ground that in reliance upon the instructions of her counsel defendant had arranged to attend court on the day after the day the trial was actually held and the court below found that such was not the fact, it was Held that judgment for the plaintiff should be affirmed.
Before MAXEY, C. J., DREW, LINN, STERN, PATTERSON, STEARNE and JONES, JJ.
Appeal, No. 28, Jan. T., 1946, from order of C. P., Chester Co., Oct. T., 1945, No. 31, in case of Fred S. Wood et ux v. Louise A. Nelson Garrett. Order affirmed.
Ejectment.
The facts are stated in the opinion, by HARVEY, J., of the court below, as follows:
In this action: of ejectment, the jury rendered a verdict for plaintiffs on June 11, 1945, for the premises described in the writ. Neither the defendant nor her attorney was present at the trial. She has filed a motion for a new trial materially assigning in support thereof "that in reliance upon the instructions of her counsel Edward D. Barker, she arranged to attend Court on June 12, 1945, the day she was informed by him the case would be tried and that she and her counsel were absent from the Court at the trial of the case on June 11, 1945, and entry of verdict against her"; that she has a meritorious defense to the action; and that an injustice will be done unless her motion prevails.
After testimony and argument, the motion is before us. Edward D. Barker, Esq., of the Philadelphia County Bar, did not appear as attorney or witness. At argument, the defendant's attorney, Howard S. Okie, Esq., stated to the Court that he was not pressing and was withdrawing from consideration the reason assigned which asserts that the defendant has a meritorious defense to the cause of action.
In the exercise of our judicial discretion, we find no reason why a new trial should be awarded.
Upon the service of the writ, B. D. Oliensis, Esq., of the Philadelphia County Bar together with Daniel J. C. O'Donnell, Esq., of this County Bar, associated as local counsel, entered their appearances for the defendant. The case was ordered on the list for trial at the March Sessions of this Court. At the call of the list upon the first day of that trial sessions, James R. Wilson, Esq., of the Philadelphia County Bar, appeared on behalf of the defendant with Mr. O'Donnell and moved for a continuance on the ground that illness of Mr. Oliensis necessitated that attorney's withdrawal from the case. Mr. Wilson stated that he appeared for the sole purpose of that motion and that he was otherwise unwilling to represent the defendant. No motion for continuance had been made prior to that time. Plaintiff's attorney, W. Edward Greenwood, Esq., first opposed the motion, but after discussion at bar, agreed to a continuance with allowance of the Court and with the understanding of Messrs. Wilson and O'Donnell that a stipulation would be entered into providing for trial before the Court without a jury on Monday, April 16, 1945.
On that day, upon call of the case, Edward D. Barker, Esq., appeared for the defendant, who was present in the court room. Addressing the Court in the immediate presence of Mr. O'Donnell and Mr. Greenwood, Mr. Barker stated that he represented the defendant who would not consent to the execution of a written stipulation on her behalf, required for the trial of the case without a jury. Accordingly, President Judge WINDLE, then presiding, ordered that the case be continued to the June Sessions for trial by jury and instructed Mr. Barker that the case would be tried without fail at that sessions and would be placed at the head of that trial list. Mr. O'Donnell then, from his position immediately before the Bench, stated to the Court that he felt there had been a breach of good faith on the part of the defendant and requested permission to withdraw his appearance for her. His request was granted.
The defendant testified that she heard the President Judge say that the case "would be tried", only. The defendant was seated about the second bench from the front provided for spectators in the court room within approximately thirty-five feet of the Judges' chairs, there was no commotion, the voices of all concerned were so raised as to be easily heard by any normal ear in the court room, the hearing of the defendant was not defective, and the distinct recollection of the writer is that she was evidently intent upon all that was said at the colloquy. We have no doubt that she heard and understood all that was said on the occasion.
The defendant testified that on June 3, 1945, she first learned that the case was fixed for trial on June 11, and that she immediately sought to communicate with Mr. Barker. Under date of June 4, 1945, she wrote him a letter which is not before us. By letter dated June 5, Mr. Barker acknowledged her letter of the 4th and stated that he was writing "the Clerk of the Court", as he there said, "so that I may get official word from him. If the case is listed for June 11, I will have to ask the Clerk to postpone it until June 12, as I expect to be in Washington on the 11th."
On June 7, 1945, the office of the Clerk of the Court of Quarter Sessions received a letter from Mr. Barker. It was dated June 5, 1945, and addressed to that official by proper name, but as "Clerk of the Common Pleas of Chester County." On the day of its receipt, it was delivered to President Judge Windle by a Deputy Prothonotary. The letter stated, inter alia, that Mr. Barker had on April 16, 1945, "requested the stenographer to enter my name on the record of the case, and inform me as to the time of trial", and concluded with a request that the case be postponed until the next day, as he would be in Washington "on the 11th, and it will therefore be impossible for me to be in West Chester." At the instruction of the President Judge, the Deputy Prothonotary on the same day phoned the office of Mr. Barker and requested the girl who responded to inform Mr. Barker that the case would be heard as listed, it being the first case listed for June 11, and if Mr. Barker had any motion to make he was to appear personally and make it.
On Saturday, June 9, or Monday, June 11, 1945, the President Judge received a phone call from a girl at Mr. Barker's office. She said Mr. Barker had to be in Washington on June 11 and asked whether or not the case might be continued or the trial thereof postponed until Mr. Barker was present. She was advised by the President Judge that such could not be done; that the case would be tried when called, and that it was the first case on the list of June 11. In response to her inquiry if that would be done even in the absence of counsel, she was advised that it would be.
Sometime on June 11, 1945, the Deputy Prothonotary received a phone call from Mr. Barker's office and the girl said Mr. Barker could not be here. He told her that he could do nothing in view of the fact that the Court had instructed him to tell Mr. Barker to be here if he had any motion to make.
The case had been duly ordered upon the June Sessions trial list, and had been duly posted and preliminarily called as the first case on that list pursuant to the Rules of this Court.
When called for trial on June 11, 1945, it was tried in the absence of the defendant and her attorney, upon motion of plaintiffs' counsel, before Judge HARVEY and a jury and a verdict rendered as above mentioned.
On June 15th the defendant filed this motion for a new trial. She had consulted Judge HARVEY in Chambers with respect to the filing of such a motion and had been by him referred to her attorney. On the 25th, Howard S. Okie, Esq., entered his written appearance on her behalf and filed the specific reasons in support of the motion.
The sole reason for a new trial pressed by the defendant which asserts "that in reliance upon the instructions of her counsel, Edward D. Barker, she arranged to attend Court on June 12, 1945, the day she was informed by him the case would be tried", is without foundation in material facts under the evidence. The defendant did not testify that her attorney, Mr. Barker, informed her the case would be tried on June 12. On the contrary, the only inference to be drawn from all the evidence is that Mr. Barker did not so inform her. What he informed her by his letter to her under date of June 5 was that he would ask to have the trial postponed until June 12. At no time and by no circumstance thereafter did the defendant have reason to believe that the trial would be postponed or the fixed date thereof changed and the fact is that she knew that Mr. Barker and she herself had been firmly warned in open court to the contrary. If too, Mr. Barker kept her advised of his unsuccessful efforts, as we must infer despite her implication to the contrary, then not later than the 7th or 8th of June, any thought that the trial would be postponed which she may have permitted herself to entertain was dispelled. It follows that the defendant did not rely upon any information from her attorney that the case would be tried on the 12th of June, or that it would not be tried on the day it had long been fixed for trial. Thus, not only is the defendant's reason for a new trial refuted and she discredited, but it is shown she does not have the status of a client who has innocently and faultlessly relied on the betrayal of her interests upon "the vigilance and fidelity of (her) counsel in and about keeping (her) advised of the proceedings in (her) cause", as her attorney now argues.
We have found that the defendant in open court heard Mr. O'Donnell's motion to withdraw his appearance for her and the allowance thereof. Her counsel intimates that she was in some way harmed by this withdrawal of that attorney. Of course, having heard the matter, her interest was in no way affected. Even if she had not been aware of Mr. O'Donnell's withdrawal, she was not hurt thereby. After April 16, 1945, by her own testimony, she did not seek to consult Mr. O'Donnell nor did she in any particular rely upon him, and she had retained Mr. Barker. The cases which her counsel cites, relating to an attorney's withdrawal in the absence of his client's knowledge and consent and without proper notice, have no application here.
The importance of the fact that both the defendant and her attorney learned on April 16, 1945, that the case would be fixed for trial on the first day of the June Sessions must not be underestimated. Both the Rules of this Court and the printed calendar would have informed them that the Stated Sessions for trials would begin on the second Monday of June 1945, the 11th day of that month. Those Rules, Trial List, sections 1 and 2 would have informed them that a list of causes ordered upon the trial list of that sessions would be posted in the Prothonotary's office twenty-one days prior to the first day of the trials and that list would be called in open court on the second Monday preceding the first day of that sessions to determine such causes as would go upon the final printed trial list. By section 5, they would have been informed that "No cause, when regularly reached for trial, shall be continued by reason of the absence of associate foreign counsel." Furthermore, Pa. R. C. P. No. 216, provides the admissible grounds for continuances and the orderly procedure relating thereto, with reference to local Rules of Court.
Without giving due deference to the explicit and unequivocal order of the President Judge made in open court in their hearing, and without regard to the plaintiffs' right, and without any attention to orderly and timely rules of procedure established by promulgation and practice, the defendant now asks the Court to allow her, as a matter of judicial grace, an opportunity of trial on the merits which her own default has lost to her. These rules, made for the orderly administration of justice should not be lightly ignored. See Silberman v. Ratner et al., 103 Pa. Super. 424. We are not persuaded that the defendant's conduct is not more evidence of a wilful effort to delay a just determination of plaintiffs' cause than it is of faultless entanglement in fortuitous circumstances beyond her control depriving her of a desired opportunity to present a meritorious defense.
In these circumstances, we may not justly disregard the interest or the right of the plaintiffs, not only provided by Pa. R. C. P. No. 218, but by the established practice of trial courts in this State, to have their cause tried even in the absence of the defendant and her attorney. Neckes v. Pocono Mountain Water Supply Company, 203 Pa. 13.
Finally, were we somewhat more favorably moved by the defendant's contentions, we could not conclude that a just and equitable course requires a new trial, because, after a careful consideration of the whole record in this Court, we are of opinion that the defendant has no meritorious defense. We need not elaborate, but merely repeat that very evidently the defendant's attorney concedes that the defendant has no defense on the merits of the plaintiffs' cause of action, and he has advanced none.
A new trial is refused. Motion therefor dismissed.
Defendant appealed.
Howard S. Okie, with him James T. Carey, for appellant.
W. Edward Greenwood, with him Gawthrop Gawthrop, for appellees.
Argued January 8, 1946.
The order of the Court below is affirmed on the opinion of Judge HARVEY.