Cohn v. Post

Citations

• 78 Pa. Super. 409
• 1922 Pa. Super. LEXIS 129

Syllabus

<p>Judgments — Rule to set aside — Discretion of the court — Service by mail — Rules of court.</p> <p>The rules of the Municipal Court of Philadelphia require that a rule for judgment for want of a sufficient affidavit of defense shall be entered within five days after the service of a copy of the affidavit. The record showed that the affidavit of defense was filed on the 9th of September, and a copy mailed the same day to plaintiff’s attorney. Rule for judgment was then entered on the 16th, in violation of the rule of court. The court below made the rule absolute, and subsequently discharged a rule to set aside the judgment, without a statement of its reasons for so doing.</p> <p>Meld: In such a case, where the record does not show that any right of the defendant was affected, or that the court abused its discretion, the Superior Court will affirm the action of the court below.</p> <p>The lower court is usually the best interpreter of its own rules.</p> <p>Proof that a copy of the affidavit of defense was mailed on the 9th day of the month gives no definite information as to when it was received. Service by mail is not personal service.</p> <p>Practice, G. P. — Affidavit of defense — Sufficiency—Sale of goods —Return of part.</p> <p>In an action to recover the price of three shipments of dresses, judgment for want of a sufficient affidavit of defense was properly allowed where it was admitted that there was a balance due, but credit was claimed for four dresses returned because they were mussed and soiled, and appeared to have been tried on by a large number of persons.</p> <p>Where a number of dresses are bought on contract without warranty, and without reference to sample, on inspection of the goods, the contract is one which must be accepted or rejected in its entirety.</p> <p>Elzea v. Brown, 59 Pa, Superior Ct. 403, followed.</p> <p>Renick & Brand v. Aronoff & Naineark, 76 Pa. Superior Ct. 206, distinguished.</p>