Moore v. Eyre

Citations

• 32 Pa. Super. 259
• 1906 Pa. Super. LEXIS 333

Syllabus

<p>Affidavit of defense — Judgment for part appearing to be due — Appeals —Practice, C. P.</p> <p>On an appeal by plaintiff from an order discharging a rule for judgment for want of a sufficient affidavit of defense, where the record shows that the plaintiff took simply a rule for judgment for want of a sufficient affidavit of defense, and does not show that he specifically pointed out any part of the claim as to which he deeriied the affidavit to be insufficient, the. court cannot be convicted of error in not making an order permitting the plaintiff to take judgment for part of his claim; but the appellate court in dismissing the appeal may do so without prejudice to the plaintiff’s right to trial by jury, or to his right to move the court below for permission to take judgment for that part of his claim as to which he deemed the affidavit of defense insufficient, as provided in the Act of July 15, 1897, P. L. 276, and to any right of appeal from the refusal of such order which he would have had if the specific motion therefor had been made in the first instance.</p>