71 Pa. Super. 439 | Pa. Super. Ct. | 1919
Opinion by
The Act of May 14,1915, P. L. 483, prescribes the procedure to be observed in actions of assumpsit. The first section declares, “The procedure shall be as herein provided.” Section ten provides that the statement of claim shall be endorsed as follows: “To the within defendant: You are required to file an affidavit of defense to this statement of claim within fifteen days from the service hereof.” The notice given to the defendant was not endorsed on the statement but was attached thereto by a rivet or metallic fastener and was in the following form: “You are hereby notified to file an affidavit of defense to the within action against you within fifteen days after the service of the summons upon you.” The notice,
The affidavit of defense is to be filed to the statement of claim but the defendant was notified to file an affidavit of defense to the “within action” within fifteen days after the service of the summons. This might require the defendant to file his affidavit before the statement of claim was filed. The action is one thing; the statement of claim, another. The former is the legal procedure by which the plaintiff’s right is asserted. The-latter is the statement of the facts on which he bases his claim. The statute does not require an affidavit to the action but to the statement of claim. We are unable to view the notice by the plaintiff in any light in which it can be held to be the equivalent of that prescribed in the Procedure Act. It was not necessary that the defendant file his affidavit until the statement of claim had been placed upon the record and the time of the service of the summons has no legal relation to the time of filing the statement of claim. In its form, therefore, the notice called on the defendant to do something which the statute did not require. It may be that in this case the summons and statement of claim were served at the same time, but the difference between the service of a summons and the service of a statement of claim is obvious. One is not the equivalent of the other. Whether -the defendant understood the meaning of the word “summons” we of course do not know, but it is not an extreme supposition. that he may have regarded the word as indicating some future legal procedure. We do not deem it necessary to consider whether the endorsement required by the statute must be made
Tbe judgment is affirmed at tbe cost of tbe appellant.