Norfolk & Western Railway Co. v. Swift

Citations

• 62 Pa. Super. 573
• 1916 Pa. Super. LEXIS 478

Syllabus

<p>Practice, O. P. — Affidavit of defense — Supplemental affidavit— Appeals — Reversal—Judgment.'</p> <p>The provision of the Act of April 18, 1874, P. L. 64, that judgment shall be entered for the plaintiff where the. refusal of judgment for want of a sufficient affidavit of defense has been reversed -by the appellate court unless “other legal or equitable cause” shall be shown means a cause which did not exist when the affidavit of defense was filed, or, if it did exist, the defendant- was ignorant of' it through no fault of his own.</p> <p>In such case, where the defendant after reversal, files without leave of court a supplemental affidavit of defense, averring a fact, the existence of which was perfectly well known to him at the time the original affidavit was filed, and the court below discharges a rule for judgment, the appellate court will again reverse the judgment, but in doing so will again have to order that judgment shall be entered for plaintiff, “unless other legal or equitable cause” shall be shown, why judgment should not be so entered.</p> <p>If after such reversal the' defendant does nothing more than ask the court below for leave to mark filed nunc pro tune the supplemental affidavit of defense, and the court refuses the motion, and enters judgment for plaintiff, its action will be sustained on appeal; and this is the case although the court based its decision on another ground than that raised by the supplemental affidavit of defense, if it appears that such question, although not passed upon, was directly raised by the affidavit of defense originally filed.</p>