Newbold v. Pennock

154 Pa. 591 | Pa. | 1893

Opinion by

Mr. Justice Mitchell,

The second section of the act of April 5, 1862, P. L. 270, was necessarily repealed by the procedure act of 1887. They embrace the same subject, the filing of affidavits of defence and entering judgment for default thereof, and their provisions cannot stand together without establishing two methods of practice for reaching precisely the same result, or making a mongrel method which is not the one prescribed by either statute. A single instance of the incongruity of the two acts will suffice. Under the act of 1887 the plaintiff must file not only a copy of the writing, if there be one, on which his case is founded, but also a concise statement of his demand, which must include every ingredient of a good cause of action, Byrne v. Hayden, 124 Pa. 170, averred with the same completeness, accuracy and precision that were required in a declaration at common law: Fritz v. Hathaway, 135 Pa. 274. To the cause of action of which he is thus explicitly informed, the defendant is entitled to and must have, under any circumstances, not less than fifteen days to make affidavit of his defence. On the other hand under the second section of the act of 1862 the plaintiff by merely filing a copy of the instrument of writing five days before the return day, may have judgment at any time after that day unless defendant has filed his affidavit. Thus with less information as to what case he is called upon to meet, the. defendant is cut down to one third of his time to meet it. Such a result is not only repugnant to the plain letter of the act of 1887, but is destructive of its general intent as declared in Marlin v. Waters, 127 Pa. 177, and other cases, to produce uniformity of practice. As the two acts cannot stand together, the result is that section two of the act of 1862 comes under the operation of the repeal in section 9 of the act of 1887, P. L. 272, and such seems to have been the correct view of the learned court below, in framing its rule upon this subject.

The judgment in the present case therefore cannot be sustained by the act of 1862, and we have next to consider whether it is regular under the act of 1887. The summons and a copy of the statement were served on Aug. 24th, the return day was Sept. 4th, and the judgment was entered on Sept. 12th. There were therefore more than fifteen days between the service of the copy of the statement and the entry of judgment, and the return day had intervened. This was the exact state of facts in Weigley v. Teal, 125 Pa. 498, in which the judgment was held to be regular. The act specifies a service of a copy of the statement on defendant at least fifteen days before the return day, and in the next section a filing of the statement, with notice to defendant, on or any time after the return day, ■but is silent as to either service or filing less than fifteen days before the return day. In Weigley v. Teal however it was held that the act did not mean to leave a hiatus of fourteen days before the return day, during which plaintiff’s progress was suspended, but that its true intent and substantial requirement were the allowance of fifteen days time to the defendant in which to make his affidavit, with service of copy before the return day, or notice of filing after it, as held in Marlin v. Waters, 127 Pa. 177. The present ease is on all fours with Weigley v. Teal, and the judgment is unquestionably regular .under that authority, unless a different result is produced by the rule of the court below.

This rule was apparently framed to meet the requirements of the act of 1887, and like that act it makes no express provision for judgment where the service of the statement is less than fifteen days before the return day. The court however seems to have construed its rule in the same way that this court construed the act of 1887 in Weigley v. Teal, and we cannot say that that was error, especially in view of the fact that the learned judge took ample care that the defendant should not suffer through surprise, by allowing him ten days in which to file a supplemental affidavit.

It is further argued for appellant that the statement is insufficient. It certainly lacks precision. The averment that the note “ was delivered to the said E. R. Bryan who then and there for a valuable consideration indorsed the same to the plaintiff,” does not distinctly set up an indorsement and delivery before maturity, and in fact is less specific than a common law declaration, and might therefore have been demurrable. But the defect was not inherently fatal, and the defendant did not demur but set up a defence on the merits. His affidavit for that purpose was insufficient. The facts set out do not make a case of fraudulent circulation of the note, so as to put .plaintiff on proof of bona fide holding, but at most amount to partial failure of consideration which was not a defence against the plaintiff unless he was not the bona fide holder. Such defence must be specifically set up by the affidavit, and the established and approved form in which this should be done, is either to set forth the facts themselves affirmatively for the court to judge of, or if the affiant cannot state them of his own knowledge, that he is informed, believes and expects to be able to prove them. The defendant, or his counsel, who departs from this approved form, and substitutes another which he may think a full equivalent, does so at his own risk. In the present case the phrase that affiant “ has abundant reason to believe ” is not an equivalent. What a suspicious defendant may consider abundant reason to question plaintiff’s title, may fall far short of the legal requirements for the court. As this defect was pointed out by the learned judge below in his opinion, and the defendant allowed ten days in which to strengthen his affidavit, but failed to do so, we may fairly conclude that he could not.

Judgment affirmed.