78 Pa. Super. 68 | Pa. Super. Ct. | 1921
Opinion by
The appellant brought an action in assumpsit against the appellees. The latter filed an affidavit of defense denying the averments in the plaintiffs’ statement of claim, and later by leave of court, filed a supplemental affidavit of defense, in which as “a further legal defense” it was averred that the plaintiffs were not entitled to
Without any proof of the averments of fact contained in the supplemental affidavit of defense the case was placed on the argument list, as if it raised only a question of law, under section 20 of the Practice Act of 1915 (P. L. 483), and the court entered judgment against the plaintiffs.
This was error. The Practice Act makes no provision for the entry of such a judgment by the court on a rule, without trial, in such circumstances and on this state of the record.
Section 20 of the Practice Act authorizes the entry of judgment by the court in favor of the defendant where the affidavit of defense raises a question of law, without answering the averments of fact in the plaintiff’s statement, but the question of law so raised arises out of the facts averred in the plaintiff’s statement, not out of the facts first averred in the affidavit of defense and not proven to be true. The Practice Act makes no provision for a reply by the plaintiff to the averments of fact contained in the affidavit of defense, unless they set up a set-off or counterclaim. It is only to the set-off or counterclaim thus alleged that the plaintiff must reply within fifteen days after service or have them taken as admitted (sections 6 and 15). He is under no obligation to reply to and deny the averments of fact contained in the affidavit by way of defense to the plaintiff’s claim and not constituting a set-off or counterclaim, and they cannot be considered as proven so as to authorize judgment against Mm, but are only accepted as true to prevent
Tbe Practice Act abolishes demurrers, and directs that questions of law theretofore raised by demurrer shall be raised in tbe affidavit of defense as provided in section 20, but this does not mean that matters of pure defense (excluding set-off and counterclaim), raised in an affidavit of defense can be accepted as proven without a trial, so as to justify tbe entry of judgment in favor of tbe defendant. Under tbe Practice Act tbe defendant can raise any question of law arising out of tbe averments in tbe plaintiff’s statement just as be could do formerly by demurrer, but without subjecting himself to tbe risk of judgment being entered against him if bis motion is denied, which was one of tbe consequences of a demurrer in common law pleading; for by section 20, if tbe court decides tbe question of law so raised against tbe defendant, be is entitled to file a supplemental affidavit of defense to tbe averments of fact within fifteen days; but tbe question of law thus raised is tbe same kind that could formerly be raised by demurrer and must arise out of tbe facts averred in tbe plaintiff’s statement and not out of new facts introduced by way of defense; in other words, it must not be what was called in common law pleading, a speaking demurrer, that is, one which alleges new matter, in addition to that contained in tbe narr, as a cause for demurrer. “A demurrer is never founded on matter collateral to tbe pleading which it opposes, but arises on tbe face of tbe statement itself”: Stephen on Pleading, 62. Tbe affidavit of defense setting
The defense raised by the supplemental affidavit of defense was, if the facts were as alleged therein, a good one: Moyer & Carpenter v. Kennedy, 76 Pa. Superior Ct. 523; Snaman v. Maginn, 77 Pa, Superior Ct. 287; Ferraro v. Hines, 77 Pa. Superior Ct. 274; but like any other matter of substantive defense it had to be averred in the affidavit and proven at the trial: Stein & Samson v. Slomkowski, 74 Pa. Superior Ct. 156., It could not be raised by demurrer: Ibid, pp. 159 and 160. It was held in Feldgus v. Friedman, 269 Pa. 60, that even at the trial, the refusal of the plaintiff when called as for cross-examination to state whether he had registered under the Act of June 28,1917, suprá, based on the ground that it might incriminate him, did not justify an inference that he had not complied with the law; that it was the duty of the defendants to produce direct evidence of the fact, and that judgment non obstante veredicto could not be entered pn such a state of,the record. Much less can the
In the cases of Moyer & Carpenter v. Kennedy, supra, and Ferraro v. Hines, supra, while judgment had been entered in the court below on the same state of the record the parties stipulated on the argument at bar that the cases should be considered with the same force and effect as if the averment of fact in the affidavit of defense had been contained in the plaintiff’s statement. While the practice was not technically correct, in view of the stipulation we overlooked it so that an early decision of a much-mooted legal question might be rendered. In the present case the parties refused to make such stipulation.
The second and third assignments of error are sustained and the judgment is reversed with a procedendo.