Bordentown Banking Co. v. Restein

Citations

• 214 Pa. 30
• 63 A. 451
• 1906 Pa. LEXIS 591

Syllabus

<p>Practice, C. P. — Pleading—Statement of claim — Suggestion of insufficiency —Affidavit of defense.</p> <p>Judgment for want of an affidavit of defense, or of a sufficient affidavit of defense is a judgment for default, and if there is no default at the time it is entered it is irregular and void, even though it might have been regularly entered earlier while the default existed.</p> <p>Where a statement of claim is insufficient, it is proper practice to file of record a suggestion to that effect. Such a suggestion of insufficiency is in the nature of a demurrer, and if it is overruled, the court may in its discretion either enter judgment for want of an affidavit of defense, or permit the defendant to file an affidavit of defense.</p> <p>An affidavit of defense may be filed as a matter of right at any time before judgment. No leave of the court is necessary. The Procedure Act of May 25, 1887, P. L. 271, made no change in the practice in this respect. The penalty provided by the act of 1887, for neglect of the defendant to file an affidavit of defense is the risk of having a judgment entered against him, not the termination of his right to file his affidavit.</p> <p>If the affidavit is filed after the expiration of the statutory period of fifteen days, the affidavit stands in the way of judgment for the plaintiff if the latter did not move for judgment, before the affidavit was filed.</p> <p>It is the practice of the courts to consider the question of fractions of a day so far as to inquire into the actual priority of an affidavit of defense filed and a judgment for default entered on the same day.</p> <p>A rule of court providing that “The court or any judge thereof may enlarge the time to declare or plead on cause shown but not to file an affidavit of defense,” has no applicability to a case where an affidavit of defense has been filed after the expiration of the statutory period. The rule gives the court no authority to enter judgment for plaintiff after the af