Appeal from the District Court of the United States for the Eastern District of Pennsylvania; George A. Welsh, Judge.
Before WOOLLEY, DAVIS, and THOMPSON, Circuit Judges.
These appeals are from judgments of the District Court for the Eastern District of Pennsylvania. The plaintiff Miller was injured while riding in an automobile owned and operated by Grobel, which collided with an automobile owned and operated by Rawnsley. He brought suit in trespass against Rawnsley, alleging that the negligence of the latter caused the collision. Rawnsley brought Grobel upon the record as an additional defendant by writ and amended writ of scire facias under the Pennsylvania Act of April 10, 1929, P.L. 479 (12 PS § 141). The writs were issued before the passage of the Act of June 22, 1931, P.L. 663 (12 PS § 141 and note). Grobel, the additional defendant, filed an affidavit of defense in lieu of demurrer, which was overruled. He then answered denying that he was negligent, averring that he was on the business of the plaintiff, and denying liability in any respect. The trial resulted in a verdict and judgment in favor of the original defendant, and a verdict and judgment in favor of the plaintiff against the additional defendant. The additional defendant, Grobel, appealed (No. 5228) and the plaintiff, Miller, appealed (No. 5271).
The verdict for the plaintiff was entered on April 27, 1933. Within the four days allowed by rule of court, the additional defendant moved for a new trial. On May 18, 1933, he petitioned for leave to file a motion in arrest of judgment as of May 1, 1933; but, although he was granted leave to do so within four days, it was not until June 6, 1933, that the motion in arrest of judgment was in fact filed. It is contended that this motion is a nullity because filed after the date allowed by the rules and order of the District Court. We need not pass upon that contention, since there is ample authority for an appellate court to order judgment arrested although there is no motion in arrest of judgment in the trial court.
In Slacum v. Pomery, 6 Cranch, 221, 223, 3 L. Ed. 205, the Supreme Court reversed judgment and remanded the cause with directions that the judgment be arrested because of a fatal defect in the declaration. In answer to the contention that there was no motion in arrest of judgment and no objection taken in the court below, Chief Justice Marshall said: "There can be no doubt that any thing appearing upon the record, which would have been fatal upon a motion in arrest of judgment is equally fatal upon a writ of error." And again: "Had this error been moved in arrest of judgment, it is presumable the judgment would have been arrested; but it is not too late to allege, as error, in this court, a fault in the declaration, which ought to have prevented the rendition of a judgment in the court below."
See, also, Cragin v. Lovell, 109 U.S. 194, 3 S. Ct. 132, 27 L. Ed. 903; United States Fidelity & Guaranty Co. v. Whittaker (C.C.A.) 8 F.2d 455; Griggs v. Nadeau (C.C.A.) 221 F.381; Western Union Telegraph Co. v. Sklar (C.C.A.) 126 F. 295; World's Columbian Exposition Co. v. Republic of France (C.C.A.) 91 F.64.
The situation is as though the appeal were before us upon refusal of a timely motion in arrest of judgment.
It is undisputed that no cause of action against the additional defendant is set up in the plaintiff's pleadings. If there are any allegations of negligence of the additional defendant constituting a cause of action against him, they must be sought in the amended writ of scire facias. The pertinent paragraphs of the amended writ read:
"And whereas, the defendant Frederick Rawnsley in said suit alleges that Charles W. Grobel (A) is liable over to said defendant for the cause of (B) action declared on in said suit, for one-half of any amount which may be recovered therein against said defendant, by reason of the fact that said defendant alleges * * *
"(3) The collision referred to in plaintiff's statement of claim and alleged to have resulted in said plaintiff's loss was caused primarily, immediately and directly by the negligence of the said additional defendant, Charles W. Grobel, the driver of the automobile in which said plaintiff was riding as a passenger. It is denied that the original defendant, Frederick Rawnsley, was negligent in any manner whatsoever but it is averred that should any negligence be proven against said original defendant the negligence of the said additional defendant was a concurring and joint cause of any damage or injury which the said plaintiff may have suffered.
"(4) It is averred that the said collision described in plaintiff's statement of claim and any injuries or loss which may be proven at the trial of this cause against the original defendant were due primarily, immediately and directly to the negligence of the said additional defendant, Charles W. Grobel. * * *
"Wherefore it is alleged that said additional defendant is liable over to the original defendant for one-half of any amount which may be recovered against the original defendant by the said plaintiff, which latter right of recovery is expressly denied and proof demanded, by reason of the fact that the negligence of the said additional defendant was a direct and concurring cause of any injuries to the plaintiff with the negligence of the original defendant, should any be proven against him and hence ...