Gottman v. Shoemaker

Mr. Justice Mercur delivered the opinion of the court, This was an action of covenant on a mortgage. Judgment was taken for want of a sufficient affidavit of defence. The first assignment of error presents the question whether any affidavit of defence was required under the rule of court. In all actions founded, inter alia, on instruments of writing for the payment of money, or on mortgages, it declares the plaintiff shall be entitled to judgment by default unless an affidavit of defence be filed, if he shall have filed a copy of the instrument of writing on which the suit is' founded, on or before the return-day of the writ. It further provides, that in suits on instruments on record in any of the courts or offices in the county, a full copy thereof need not be filed' if the praecipe or narr. contain a full reference to the office, book and page where the same may be found. In this case the action was founded on an instrument of writing. No copy of it was filed. Neither the praecipe nor the narr. contained any reference to any office, book or page where the same could be found. The plaintiffs below had therefore clearly failed to perform an act which was essentially necessary to impose on the defendants the. duty of making an affidavit of defence. It is so manifest that the defendants in error were not in a condition to invoke the aid of the rule, we must infer that this fact was not brought to the attention of the court below. The necessity for an affidavit of defence must have been assumed, and its sufficiency only considered. An omission, however, to then state an objection so clearly shown by the record does not now preclude the plaintiffs in error from urging it as a ground of objection to the judgment. It was the duty of the defendants in error to show they had com [33] plied with all the requirements of' the rule necessary to entitle them to a judgment. They should have shown it then; they must show it now, or the judgment cannot he sustained. It is unnecessary to elaborate this case.. No argument can make the error more clear than a simple statement of the facts. The defendants in error had no right to ask for an affidavit of defence; the other party was under no obligation to file one. As the case goes back for trial, it is not necessary to consider the facts averred in the affidavit, nor to review the other assignments. Judgment reversed, and a venire facias denovo awarded.