Johnson v. Carver

Citations

• 175 Pa. 200
• 34 A. 627
• 1896 Pa. LEXIS 1235

Syllabus

<p>Practice, G. P. — Affidavit of defense — Judgment for portion of claim admitted — Condition upon order for judgment.</p> <p>In entering judgment for a portion of a claim admitted to be due by the affidavit of defense, the court made an order imposing as a condition of the entry of judgment that the plaintiffs should deliver to defendants certain patterns and drawings. No reference was made to the patterns or ■drawings in the affidavit of defense. The order was put on record on -June 22, 1895, but no exception was taken. On September 9, following, -at plaintiffs’ request, the order was modiñed so as to read: “Order of June 15, 1895 for judgment, amended so that plans etc. be delivered without prejudice, and be produced by defendant at time of trial.” Two months after this plaintiffs excepted to the original order, and took an appeal. Held, that the judgment should be affirmed, the appeal being without merit, as the obvious inference from plaintiffs1 conduct was that the first order was consented to as promotive of justice between the parties.</p> <p>Practice, O. P. — Affidavit of defense — Act of May 31, 1893 — Authority of court extended by consent.</p> <p>It seems that in the above ease, as there was no mention made of the patterns and drawings in the affidavit of defense, the court had no authority under the act of May 31, 1893, P. L. 185, to do other than enter judgment for the amount admitted to be due. The authority of the court may however be extended, either by the express or tacit consent of counsel at bar so that the decree shall protect conceded rights not averred of record.</p>