Dick v. Forshey, 71 Pa. Super. 439

Dick v. Forshey

71 Pa. Super. 439 | Pa. Super. Ct. | 1919

Opinion by

Henderson, J.,

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, *441as will be observed, departs from tbe form prescribed in tbe act of assembly in tbe use of tbe word “notified” instead of “required,” in calling for the filing of an affidavit of defense “to tbe witbin action against you” instead of “to this statement of claim” and in limiting tbe time witbin wbicb an affidavit of defense must be filed to “fifteen days after tbe service of the summons upon you” instead of “fifteen days from tbe service hereof.” While conceding that tbe notice is not endorsed on tbe statement of claim in a technical sense and that tbe notice is not in tbe words used in tbe statute it is contended that there has been substantial compliance with tbe requirements of tbe act and that tbe court below was in error in striking off tbe judgment. We are to inquire therefore, whether tbe doctrine of substantial compliance meets tbe requirements of a statute wbicb prescribes a literal form and whether conceding that that might be tbe case there has been a substantial compliance. Tbe purpose of tbe legislature in enacting tbe tenth section of tbe statute was manifestly to secure uniformity and regularity with respect to tbe notice necessary to place tbe defendant in default in case of bis failure to present bis defense. It takes tbe place of rules of court and prior legislation on tbe subject and puts in exact form tbe notice to wbicb tbe defendant is entitled. But for this prescription of form such a variety of terms would probably be used as would lead to litigation on tbe question of sufficiency and would subject litigants to vexation and tbe courts to tbe consideration of unnecessary and unprofitable controversy. It is to be presumed that in selecting tbe very words of tbe endorsement importance was attached to them according to their signification and that they were used advisedly. Has tbe word “notified” as used by tbe plaintiff tbe same significance as the word “required” as found in tbe statute? To notify is to inform; to make known. To require is to demand authoritatively; to find indispensable. It implies as used in tbe statute liability to *442prejudicial consequences if the notice be disregarded and is, therefore, an imperative term. To notify is a less formidable expression and might be very differently regarded as to its legal effect. It was the apparent intention to have information given to the defendant that it was obligatory on him to cause his affidavit of defense to be filed within the prescribed time if he would avoid the consequences.

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 *443by printing or writing on tbe back of tbe summons. Tbe derivation of tbe word and its popular use would point to tbe conclusion that sucb was tbe form in wbicb tbe notice was to be served. It would thus be conspicuously presented to tbe attention of tbe defendant and tbe information that it conveyed thus more promptly communicated to bim. Our conclusion, however, is based on what we regard as the insufficiency of tbe notice as given by tbe plaintiff. As we read it it has not necessarily tbe same meaning as tbe notice prescribed in tbe statute, if tbe form there prescribed may be departed from to any degree. Tbe notice, to tbe defendant appearing on tbe record being insufficient tbe judgment was irregularly entered and was properly stricken off by tbe court.

Tbe judgment is affirmed at tbe cost of tbe appellant.