Marlin v. Waters

Citations

• 127 Pa. 177
• 17 A. 890
• 1889 Pa. LEXIS 1098

Syllabus

<p>[To be reported.]</p> <p>1. If the plaintiff, filing a statement of claim in assumpsit under the procodure act of May 25, 1887, P. L. 271, neglect to serve a copy thereof upon defendant before l’otnrn day, or give notice of the filing of it after return day, a judgment taken for want of an affidavit of defence is without authority and will lie stricken off on motion.</p> <p>2. Under said act, if plaintiff would hold the defendant to an affidavit of defence to be filed on return day, he must have served a copy of the statement fifteen days before that day; but, if a copy be not thus served fifteen days before return day, judgment for default of the affidavit may be taken fifteen days after notice of the filing of the statement.*</p> <p>3. The clause in § 5 of said act, providing that judgment may be moved for, “in accordance with the present practice,” etc., refers only to the mode of obtaining judgment, and specially to taking it for part of plaintiff’s claim, but does not authorize judgment to be taken under a rule of court without service of a copy of the statement filed or notice of such filing.</p>