Gannon v. Fritz

Mr. Justice Woodward delivered the opinion of the court, January 6th 1876. This judgment was entered under the provisions of the fifth of the rules adopted for the regulation of the practice of the court below. By the first section of this rule it is prescribed, that “ in all cases the plaintiff shall file with or before his declaration a [306] specification of the items of his claim, and a statement of facts necessary to support it, verified by affidavit, to which the defendant shall, within the time hereinafter specified, file an answer, verified by affidavit; and such items of the claim and material averments of the facts as a.re not directly and specifically traversed and denied by the answer, shall be taken as admitted.” The second section provides that “if the specification and statement be filed with the prsecipe, they shall be treated also as an affidavit of claim, and the defendant shall, without further notice, file his answer thereto within the time required for filing an affidavit of defence, which answer shall be treated as an affidavit of defence. If the specification and statement he not filed with the praecipe, the plaintiff shall, within ten days after filing the same, notify the defendant thereof, and the defendant shall, within ten days after notice, file his answer thereto.” The third section, under the terms of which the plaintiff below asserted the right to a judgment, is in these words: “ This rule shall apply to a specification of set-off and statement of defence, filed by the defendants, who shall, within ten days after filing the same, notify the plaintiff thereof; and the plaintiff shall, within ten days after notice, file his reply thereto, verified by affidavit.” It is directed by the fourth section, that if the plaintiff fails to comply with any of the requirements of this rule, judgment of non pros, shall be entered against him by the prothonotary; and if the defendant fails to comply with any of the requirements thereof, the plaintiff shall be entitled to judgment against him as for default of a plea and affidavit of defence. The material inquiry here is, whether this record shows such default on the part of the defendants as to subject them to the penalty imposed by the fourth section of the rule. It is admitted that the affidavit filed on their behalf was adequate, but it is admitted also, on the other hand, that notice of it was not given to the plaintiff. All the several provisions that have been quoted are to be considered in their connection with and their relation to each other. The first and second sections define a defendant’s duty in cases where the inquiry is confined to the validity and integrity of the plaintiff’s cause of action, in which items of claim and material averments of facts are to be “ directly and specifically traversed and denied.” In such cases the defendant is required to file his answer within the time limited in the alternative directions of the second section, and he is required to do nothing more. It is only when he presents such a defence as that to which the third section refers, that he is bound to give notice of his answer within ten days after filing it. The confusion apparently arising out of the words “ statement of defence,” is dissipated if this section is read in the light thrown upon it by the language of the first. To read the direction that the rule “ shall apply to a specification of set-off and statement of defence,” cannot be treated as requiring [307] that notice of every defence in every action shall be given to a plaintiff. All necessary provisions relating to general actions, had been previously made. The object of this section was to regulate the practice when the defence of set-off should be interposed, and to provide for notice'to the plaintiff of the defendant’s “ specification of set-off,” and, in the language of the first section, of his statement of facts necessary to support it. This construction gives symmetry to the various requirements of the rule. The construction of the court below would distort them all. In the present case no defence of the character of a set-off was alleged. The right of the plaintiff to a verdict was contested on grounds that affected the very instrument on which the suit was brought. There was nothing in the nature of a fresh or* independent demand, and nothing, consequently, to which the third section of the rule under discussion could apply. The judgment was improvidentlv entered by the prothonotary, and should have been opened by the court. It is not designed to disturb in the slightest way the well-settled principles which recognise the inherent right of the courts of original jurisdiction to establish and enforce rules for the government of their practice. Upon the expediency of a provision that a judgment shall be the penalty for a failure to give notice to a plaintiff of a specification of set-off as a ground of defence, no opinion is expressed. In the ordinary ease, the question of expediency, in the language of Rogers, J., in Mylin’s Estate, 7 Watts 64, “ is not a question for this court, for it must be left to the sound discretion of every court to regulate its own practice.” In the ordinary ease, also, the construction of their own rules by the' courts of original jurisdiction is accepted as conclusive, for, as has been repeatedly said, they are their best exponents: Dailey v. Green, 3 Harris 118, 128. It is only where wrong is manifest that their discretion will be interfered with or invaded. The palpable error in this instance is undoubtedly attributable to inadvertence. Judgment reversed, and procedendo awarded.