97 Pa. Super. 588 | Pa. Super. Ct. | 1929
Argued December 10, 1929. This is an appeal from an order making absolute a rule to open a judgment taken for want of an affidavit of defense. Service of the summons and of the statement of claim was accepted January 17, 1928. The statement bore the usual endorsement requiring defendant to file an affidavit of defense within fifteen days from the service thereof. The judgment was entered March 22, 1928. An affidavit of defense was filed June 27, 1928, and on the same day the petition to open the judgment was filed, together with a copy of the affidavit of defense. The petition alleged that defendant has a true, just and valid defense to the action; *590 that an affidavit of defense had been filed on the same day; and that "through inadvertence the affidavit of defense, a copy of which is hereto attached, was not duly filed." The answer averred that the affidavit of defense filed was insufficient to prevent judgment, and that it disclosed no meritorious defense. No depositions were taken. The court below filed an opinion stating that during the argument on the rule to open the judgment, counsel for defendant declared "that counsel for plaintiff had made an agreement with him not to take judgment in the above stated case, which was denied by counsel for plaintiff. Under the statements made by counsel in this connection, it is evident that there must have been some misunderstanding in the matter;" and that while the affidavit of defense did not conform to the Practice Act of 1915, the general denials made by defendant and the averment that plaintiff had not suffered any loss by defendant's cancellation of the contract were sufficient to take to the jury the matter of the amount of damages, if any, which plaintiff sustained.
We are of one mind that the order must be reversed for several reasons. In a proceeding to open a judgment the petition and answer comprise the pleadings and the court grants relief only upon the grounds embraced therein: State C. of Pa. P.S. of A. v. Kelly,
The order of the court below is reversed, and the judgment is reinstated.