188 F. 860 | U.S. Circuit Court for the District of Eastern Pennsylvania | 1911
In this case we have reached the conclusion the defendants should not be required to file affidavits of defense. The plaintiffs are here seeking to enforce a statutory right by a statutory proceeding. Having secured, in a case against these defendants before the Interstate Commerce Commission, an order for reparation (see Naylor & Co. v. Lehigh Valley R. R. Co. et al., 18 Interst. Com. R. 624, No. 1,511, Opinion and Order No. 168), the plaintiffs served that order on the defendants. On noncompliance by the latter, the plaintiffs brought this action of assumpsit, which in their statement of claim -they aver is “to enforce the aforesaid order of the Interstate Commerce Commission, dated June 7, 1910, as provided
‘“Under the act of May 25, 1887, the actions of assumpsit for which judgment may be taken for want of an affidavit of defense are limited to such as are founded on contract alone, and do not include cases in which the cause of action is ex delicto or of a mixed character of contract and tort. It was the intention of the Legislature to limit the remedy by judgment for want of an affidavit of defense to causes of action which were either actually in writing, or contracts the whole details of which could be plainly set down in writing, with particular terms and limitations, so that a liability for the payment of a definite sum of money could be expressed.”
And in Kinney v. Mitchell, 136 Fed. 773, 69 C. C. A. 493, this court held to the same effect. The present suit, therefore, not being one ex contractu, no affidavits of defense are required.
The1 rule to vacate a rule for an affidavit of defense is made absolute.