49 Pa. Super. 386 | Pa. Super. Ct. | 1912
Opinion by
The plaintiff’s statement of claim in this action of as
We are of opinion that the court could not have granted judgment without ignoring the construction that was given to the Act of May 25, 1887, P. L. 271, in Corry v. Penna. R. R. Co., 194 Pa. 516, and applied in that case. Chief Justice Green, speaking for the court, said: “We think an examination of the act of 1887 clearly shows that it was the intent of the legislature to confine the remedy by judgment for want of an affidavit of defense to actions ex contractu alone, as they were before the act was passed, and not to extend this remedy to actions ex delicto, or in their nature ex delicto.” Then, after discussing secs. 3 and 5, he said: “It seems to us quite clear that it was intended to limit the actions of assumpsit for which judgment may be asked for want of an affidavit of defense to
The appeal is dismissed at the costs of the plaintiff, but without prejudice to his right of trial by jury and a second appeal after final judgment.