110 Pa. 121 | Pa. | 1885
delivered the opinion of the court, June 6th, 1885.
The judgment entered in this case was for want of an affidavit of defence. The record undoubtedly shows that a motion was made to strike off the judgment, thus: “And now, May 28th, 1883, defendant by attorney moves the court to strike off the judgment taken in default in this case for the reasons: 1st. Defendant had entered no appearance, hence plaintiff was not entitled to an affidavit of defence, and could not take judgment for want of an affidavit of defence. 2d. The plaintiff’s declaration is not such that plaintiff was entitled to judgment by default for want of appearance or affidavit of defence.” There was also a rule to open the judgment and
The defendant, however, is not without remedy. He had asked for a more radical redress, and if he was entitled to it he is not to be deprived of it merely because he accepted the opportunity of reaching the same result in the modified form which was offered to him. In Ringwalt v. Brindle, 9 P. F. S. 51, where the application was to open the judgment, we allowed an assignment of error to be filed here, averring that
In the present case the plaintiffs claim was for professional services rendered as an attorney-at-law to the defendant. There was no book account, and no bill, note, bond or other instrument of writing for the payment' of money against the defendant, and of course the claim did not come within the rule of court authorizing judgments for want of an affidavit of defence. This being so, the defendant was not required to file an affidavit of defence in order to prevent judgment, and the plaintiff had no right to a judgment for want of such affidavit. It is manifest, therefore, upon the face of the record, that the judgment entered in the court below was irregular a,nd illegal, and should have been stricken off on the defendant’s motion. We held, in Commonwealth v. Hoffman, 24 P. F. S., on p. 111, that, “ Wherever upon the face of the record there appears no ground for a lawful judgment, the Court of Errors will reverse.” This was said as to a judgment for want of an affidavit of defence, in a case where it was not authorized by the rules, and other authorities to the
The’ judgment entered on the verdict in this case is reversed and record remitted. And it is further ordered that the original judgment entered for want of ano affidavit of de- , fence be reversed and set aside, and procedendo awarded.