| Pa. | Jul 1, 1857
Lead Opinion
The opinion of the court was delivered by
Courts have an undoubted right inherently, as well as by Act of Assembly, to establish rules to regulate their practice, and for the purpose of expediting the determination of suits, when such rules are not. inconsistent with the constitution and laws of the Commonwealth. Their object is to facilitate business, prevent unnecessary delay, and promote substantial justice. When they fail of this they cease to accomplish their legitimate purpose. In Burkhart v. Parker, 6 W. & S. 481, Justice Huston observes: “ There is no doubt of the propriety and even necessity of some established rules regulating the practice of courts. There is, however, much doubt as to whether many of the rules in our Courts of Common Pleas do not more frequently obstruct and destroy the administration of justice than- promote it. Rules of court, and even Acts of Assembly on the same subject, have been held not to extend beyond the letter; nor to extend to cases within the letter, but not within the spirit.”
The rule of court in Blair county provides that the plaintiff, having filed his declaration, &c., “ shall be entitled to judgment on the third day of the term next succeeding that to which the process is returnable, when the term is for one week, and on the second Monday of the term when the same is to continue two weeks, or on any motion day afterwards, unless the defendant, or some person for him, shall have made affidavit of defence, and filed the same before judgment be asked for in court.” On the 4th of August, being the second Monday of July Term, 1858, on motion of the plaintiff below, the court entered judgment against the defendant for want of affidavit of defence under the rules .of
The plaintiff had the whole of Monday, and at any point of time on that day, to ask for judgment, and could not have asked it earlier. Why then should not the affidavit he regarded as in time, if filed on the same day ? Is it possible that if immediately after the judgment is asked, an affidavit disclosing a good defence is filed, it could not avail because it did not precede the motion ? Such might be the letter of the rule, but it would be an assassination of its spirit. How long it was from the motion for judgment, till the filing of the affidavit, does not appear. It may have been immediately. The law knows no fractions of a day: 11 Mas. R. 204; Blacktone’s Com. 1 vol. 114. In Bigelow v. Wilson, 1 Pick. 494, it is said, “ the time of executing a deed used in the statute, means, in legal acceptation, the day of the delivery. This day, in a legal sense, is an individual point of time, there being no fractions of a day.” In Brown v. Brown, 3 S. & R. 496, it is said, “ in computing the twenty days' allowed for appeal, the day on which the award is filed is excluded, as it may Be returned on the last hour of that day, and the utmost latitude of construction should prevail, as it is in favour of the constitutional right of the party to have his cause tried by á jury of the country.” The plaintiff may have chosen any point of time throughout the day, even the last hour, to move for judgment; and in this event it is possible the affidavit would have preceded the motion. If the affidavit be filed on the first day that the plaintiff is entitled to ask for judgment, it will be in time. And this, it is understood, accords with the usage, generally where this rule prevails. It is too sharp a practice to count on the fractions of á day, or insist on mere precedence to prevent the defendant from a fair trial of his cause. A meritorious defence is entitled to a favourable construction of the rule.
There is another view in which this case may be considered. On the day the writ issued, the plaintiffs entered a rule to choose arbitrators on the 15th March, 1856, who were to meet on the 14th of April ensuing. On the 3d of May judgment was confessed by defendant’s attorney, with the right’ of appeal, as if an award had been made. And on the 13th of May an aippeal was regularly entered and the usual affidavit filed. Did not the plaintiff’ by these proceedings, and by accepting a confession of judgment by the attorney, with the right of appeal to defendant, when he might have insisted on an award by the arbitrators, waive his right to judgment for want of affidavit of defence? In O’Neal v. Rupp, 10 Harris 395, Justice Knox says, “ the right to a judgment for insufficiency in the affidavit of defence may be waived. A party who intends to ask for judgment on account of an affi
Judgment reversed and procedendo awarded.
Concurrence Opinion
I concur in this judgment on the first ground taken in the opinion. Under the rule of court, according to its universal interpretation, the defendant had the whole of the first day of the term to file his affidavit of defence. Where judgment is taken on the first day of the term, for want of the affidavit, the practice has been to open it on coming in of the affidavit afterward, but on the same day; and it is so general and just a practice, especially in the rural districts, that I am willing to recognise it as a rule of law, and in vindication of it to reverse the judgment.
Concurrence Opinion
I concur in the foregoing opinion, so far as it holds that after a defendant has entered an appeal from an award of arbitrators, paid costs, entered bail, and filed an affidavit, as required by the Act of Assembly, the rule of court requiring an affidavit of defence does not deprive him .of the trial by jury, secured by the constitution and the arbitration law. I think that where the plaintiff enters the rule to arbitrate, as in this case, he waives the benefit of the rule of court, and that this principle is established unanswerably in the opinion just delivered by Judge Armstrong.