Plaintiff's attorney was evidently under the impression that, after the postea had been signed by Judge Lawrence, the object of the rule allowed by Justice Minturn was served, and that the stay contained therein was no longer effective and did not restrain him from taking the necessary proceedings to bring on the argument of the rule before the Supreme Court. He accordingly obtained from Judge Lawrence (who evidently entertained the same view) a rule amending the previous rule granted by him to the extent that the argument should be heard before the Supreme Court on the first Tuesday of February.
Apparently, because of the uncertainty on the part of plaintiff's attorney as to whether the rule originally granted by Judge Lawrence, and the reasons on which plaintiff rested her motion for a new trial, should be filed in the office of the Clerk of the Supreme Court, or in the office of the Clerk of the Court of Common Pleas, these papers were withheld from the files and were not filed within the ten days required by the rules of this Court. A copy of the reasons and rule were, however, immediately served on the attorney for the defendant. Depositions were also taken by the plaintiff under the rule.
On the 15th day of December, 1921, plaintiff's attorney obtained from Mr. Justice Kalisch a rule permitting plaintiff to file the rule to show cause allowed on the 22d day of September, as amended by the rule made by Judge Lawrence on the 30th day of November and the reasons on which plaintiff based her motion for a new trial, with the same force and effect as if the same had been filed within the time limited by law, and, immediately after that rule was granted, filed the rule made by Judge Lawrence and the plaintiff's reasons in the office of the Clerk of the Supreme Court. A copy of the depositions which were taken under the original rule granted by Judge Lawrence were also served on the defendant's attorney.
No state of the case has yet been prepared and served, but it is stated to be the plaintiff's intention, should the Court permit her to do so, to immediately prepare and print her case and bring on the rule for argument at the February Term of the Supreme Court.
The defendant moves to vacate the rule of September 22d, and the rule of November 30th, amending it; to vacate the rule allowed by Justice Kalisch permitting plaintiff to file such rules and the reasons. The plaintiff moves to vacate the restraint imposed upon her by the rule allowed by Justice Minturn October 25, 1921, and also moves to be allowed to perfect her proceedings for a new trial, and to bring on the same for argument, according to the rules and practice of the Court, at the February term.
We think the defendant's motion should be denied and the plaintiff's motions granted.
It is of course apparent, and the plaintiff freely admits, that the rules to show cause why a new trial should not be granted were irregular and defective and that they have not been brought on in accordance with the rules of the Supreme Court; but evidently the sole reason therefor was the confusion existing, both in the mind of plaintiff's attorney and that of the trial Judge, as to whether the application for a new trial should be heard before the trial Judge or before the Supreme Court.
It seems not to be disputed that substantial reasons exist for giving consideration to plaintiff's application for a new trial. In granting the rule to show cause why a new trial should not be granted the trial Judge evidently felt that the plaintiff should be given her day in Court upon the reasons which were presented to him why the verdict of the jury should not be set aside. We feel that this Court should not allow the technical infirmities in the proceeding to deprive the plaintiff of an opportunity to be heard when, by a suspension or relaxation of its rules, a possible injustice may be avoided. Rule 217 of the Supreme Court provides: "The time limited in these rules for the doing of any act may, for good cause, be extended (either before or after the expiration of the time), by order of the Court, or a Justice or a Judge thereof." Rule 218 provides: "These rules shall be considered as general rules for the government of the Court and the conducting of causes; and as the design of them is to facilitate business and advance justice, they may be relaxed or dispensed with by the Court in any case where it shall be manifest to the Court that a strict adherence to them will work surprise or injustice."
We therefore deny defendant's motion to vacate the rules heretofore obtained by the plaintiff to perfect her proceedings for a new trial, and we grant the plaintiff's motion to vacate the restraint imposed in the order of Mr. Justice Minturn, and also grant the plaintiff permission to perfect her proceedings for an application for a new trial, and also permission to bring the same on for argument at the February term of this Court, according to the rules of this Court. The relief thus granted to the plaintiff will be upon terms that she pay the defendant costs upon these motions; all other costs to abide the event.