157 A. 211 | Pa. Super. Ct. | 1931
Argued October 8, 1931. The appellant brought this action of assumpsit in the municipal court, and on December 23, 1930, served a copy of her plaintiff's statement on the defendant, claiming the sum of $2,805 for board and rent, and money lent defendant, or expended at her special instance and request.
No affidavit of defense having been filed, on January 9, 1931, judgment was entered for want of an affidavit of defense.
On January 30, 1931, the defendant presented a petition to open the judgment, and a rule to show cause why the judgment so entered should not be opened and *346 the defendant allowed to present a defense, was granted by the court, to which the appellant filed an answer.
The court, being of opinion that the failure of the defendant to file an affidavit of defense was chargeable to the default or delay of her attorney and that it would be unjust to deny the defendant her day in court because of her attorney's delay in filing the affidavit of defense, which was left in the prothonotary's office on January 12, 1931, made the rule to open the judgment absolute. The plaintiff appealed.
It is not necessary to discuss the right or wrong of this order (See respectively Fuel City Mfg. Co. v. Waynesburg Products Corp.,
The court below, in opening the judgment entered on January 9, 1931, did not go far enough. It should have struck it off.
The judgment entered in the municipal court on January 9, 1931, is accordingly stricken off for want of jurisdiction apparent on the face of the record.