Taber v. Olmsted

Opinion by Mr. Justice McCollum, In this case the defendant admitted and tendered judgment for two thirds of the plaintiffs’ claim, and filed an affidavit of defence to the balance of it. Thereupon the plaintiffs moved for judgment for want of a sufficient affidavit of defence, and for leave to enter judgment and issue fi. fa. for the amount admitted to be due. Both matters were included in one motion, and by an order indorsed thereon the court granted a rule to [354] show cause'why judgment should not be entered for want of a sufficient affidavit of defence, and allowed judgment to be entered for the amount of the claim admitted by the defendant. The motion and order were made on the 28d of April, 1891, and a judgment for the amount admitted to be due was entered and a fi. fa. issued thereon the same day. The defendant promptly paid the amount of the execution to the sheriff, who paid the same to the plaintiffs. The rule to show cause was argued on the 1st day of June following, and the rule was discharged on the ground that the proceedings in reference to the admitted part of the claim operated as a satisfaction of the disputed part of it. It is manifest from this record that neither the court nor the plaintiffs intended that the action taken by them on the 23d of April should have the effect attributed to it on the 1st of June. It is probable that the plaintiffs would not have accepted a judgment for the admitted part of their claim in satisfaction of the whole of it, and it is quite certain that if they had intended to do so they would not have moved for judgment for want of a sufficient affidavit of defence. Their motion was a plain announcement of their purpose, with the assent of the court, to take judgment for the amount admitted to be due, and to proceed in regularlegal course for the disputed balance. The rule to show cause was as plainly referable to this balance as the leave to enter judgment was to the rest of their claim. Assuming that the order of April 23,1891, was valid, it was the clear duty of the court to pass upon the affidavit, and if it contained a good defence to discharge the rule and send the case to a juiy, but, if it was deemed insufficient, to make the rule absolute and enter judgment for the plaintiffs for the disputed portion of their account. It will be observed that we regard the order referred to as a permission to the plaintiffs to have judgment for and receive the sum admitted to be due them, and to proceed for the residue. If the court had intended that their acceptance of the admitted sum should be a bar to further proceedings for the balance claimed by them, it would not have granted the rule to show cause. But the court having granted, and the plaintiffs having acted upon this permission, the court could not subsequently recall it. We have thus far considered the order as within and a proper exercise of the power of the court. Are we right in so consid [355] ering it ? That the court might have adopted a general rule under which the plaintiffs would have been at liberty to proceed as they now claim they may do under the order in question, is not denied, and it cannot well be, in view of our decisions on the subject. These decisions are cited and the rules deducible from them clearly stated by our brother Mitchell in Stedman v. Poterie, 139 Pa. 100. It may be conceded that the better practice would be to exercise this power in the form of a general rule, but such concession does not involve a denial of the right to exercise it by special rule or order in cases as they arise. A general rule or special order which allows the plaintiff to take judgment and have execution for that part of his claim which is admitted, and to proceed in due legal course for the part which is contested, does no injustice to the defendant. It merely facilitates the collection of that which he admits he owes, without abridging in any respect his opportunity for defence to that which he disputes. Whether the affidavit of defence is sufficient to prevent judgment for the balance of the plaintiffs’ claim is a question not yet passed upon by the learned court below, and, until it is, we decline to consider it. The order discharging the rule to show cause why judgment should not be entered for want of a sufficient affidavit of defence is reversed, the rule is reinstated, and a procedendo is awarded.