Applegate v. Cohn

1 Pa. Super. 174 | Pa. Super. Ct. | 1896

Opinion by

Beaver, J.,

Judgment was entered in the court below on the 16th of March, 1895, for want of a sufficient affidavit of defense. The summons was issued February 16, and the same day the plaintiff’s statement and affidavit of cause of action filed, which, accoi'ding to the return of the sheriff, seems to have been served with the summons. March 4,1895, defendant filed his affidavit of defense. On the 16th of March, 1895, the plaintiffs attorney moved the court for judgment for want of a sufficient affidavit of defense. Of this motion the defendants’ attorney had notice. Both parties being represented, and the question for consideration being' the sufficiency of the affidavit of defense, there was no need for the issuance of a formal'rule returnable subsequently. The court heard both sides, which was equivalent to the granting of a rule returnable forthwith. The decree of the court shows that, on the 16th of March, 1895, motion for judgment was argued by counsel for plaintiff and defendant. The defendant, the appellant in this court, therefore, had his day in. court and was heard in support of his affidavit of defense. The court found and so ruled “ that plaintiff is entitled to judgment for the said principal and interest alleged to be due in plaintiff’s statement, the affidavit of defense being insufficient, judgment is entered for the sum demanded by the statement, amount to be ascertained by the prothonotary.” Same day the prothonotary, upon praecipe of plaintiff’s attorney, entered judgment in favor of plaintiff against the defendant for the sum of $487.03. From this judgment there was no appeal.

On the 1st of April following the defendant’s attorney presented his petition to the court, praying for the entry of a rule upon the plaintiff to show cause why the judgment previously entered should not be opened or stricken off and supplemental affidavit of defense allowed to be filed. The court granted the rule. The plaintiff’s answer thereto was filed immediately. The question before the court, therefore, was not as to the sufficiency of the supplemental affidavit of defense, but whether or not the court would make the rule, to strike off the judgment and allow a supplemental affidavit of defense to be filed, absolute. Upon consideration, the court, on the 1st of July, 1895, filed a short opinion, discharging the rule, from which decree the defendant appealed to this court, July 20, 1895, more than three months after the entry of the original judgment.

Upon the record, as thus presented, it seems to us that the question of the sufficiency of the original statement, under the provisions of the act of the 25th of May, 1887, does not come under review. The defendant had the right to object to the sufficiency of the statement at the time of the argument for the motion for judgment for want of a sufficient affidavit of defense. This he did not do and the entry of the original judgment was, therefore, so far as the sufficiency of the statement was concerned, res adjudicata. As was said by Mr. Justice Mitchell, in delivering the opinion of the court in Newbold v. Pennock, 154 Pa. 597:“ It is further argued for appellant that the statement is insufficient. It certainly lacks precision. The averment that the note was delivered to the said E. R. Bryan, who then and there for a valuable consideration indorsed the same to the plaintiff, does not distinctly set up an indorsement and delivery before maturity, and in fact is less specific than a common law declaration and might, therefore, have been demurrable, but the defect was not inherently fatal, and the defendant did not demur but set up a defense on the merits. His affidavit for that purpose was insufficient;” so we may say in this case that, having failed to demur to the statement and having set up a defense on the merits which was decided against him, the defendant should have appealed from the judgment of the court below, in order to raise the question of the sufficiency of the statement. The petition of the defendant for a rule to show cause why the judgment originally entered should not be stricken off and he allowed to file a supplemental affidavit of defense, in which said petition he alleged the insufficiency of the statement upon grounds therein stated, was granted by the court. The rule was answered fully by the plaintiff. This raised an issue of fact which should have been supported by testimony presented to the court below. No testimony was taken, and, although a supplemental affidavit of defense was offered to be filed, it had no greater weight or significance than the petition upon which the rule was granted. It was incumbent on the defendant to inform the court, by competent evidence, as to the facts alleged in his petition. Having failed to do this, we are of opinion that the court was justified in discharging the rule, for the reasons stated in the opinion of the learned judge. The judgment, entered 16th of March, must therefore stand, and the decree of the court below of July 12, discharging the rule to show cause why the judgment should not be opened or stricken off, and the defendant allowed to file a supplemental affidavit of defense, is affirmed.