Barndollar v. Fogarty

Opinion by Mr. Justice Brown, A rule for an issue to determine the ownership of the goods claimed by the appellant was made absolute on November 3, 1900. It had been taken in pursuance of the provisions of the Act of May 26,1897, P. L. 95, and the bond and statement of the claimant, required by the act, should have been filed within two weeks after the issue had been awarded. On November 5,1900, the bond was approved and filed; but the statement was not filed until January 7,1901. On the day following, at the instance of the plaintiff in the foreign attachment under which the goods claimed by the appellee had been seized, a rule was granted to show cause why judgment of non pros, should not be entered in the issue, because a statement, signed and sworn to by the claimant, had not been filed within the statutory period. On January 28, 1901, labor claimants were allowed to join in the application for judgment of non pros., and on July 8, 1901, such judgment was entered, for the reasons that claimant had not filed its statement within two weeks after the issue had been framed and that the one filed after-wards had not been signed and sworn to by it. Subsequently the claimant asked leave to file an amended statement, but the [620] court below refused to disturb tbe judgment or to grant any relief, on the ground that it had not power to do so, the learned judge having been of the opinion that the provision in the act requiring that the statement, signed and sworn to by the claimant, shall be filed within two weeks from the awarding of the issue, was mandatory. It is true, the act does provide that the statement shall be filed within two weeks from the time the rule for an issue is-made absolute, unless, for cause shown, the time be extended by the court; and, after the expiration of that period, if the statement is not filed, the plaintiff in the execution can act by asking for an order that the sheriff do proceed with his writ, or that judgment of non pros, be entered in tbe issue. But, if the plaintiff does not act when he may, after the expiration of two weeks during the period of the claimant’s inactivity, there is nothing in the act which says he may do so after the latter has acted by filing his statement. The failure of the plaintiff to act while the claimant is still in default can fairly be regarded as his further indulgence, and, if the claimant acts during such indulgence, by doing that -which the act says ought to have been done before, it is not reasonable that then, at the instance of the plaintiff in the writ of execution or attachment, who had himself been inactive, the severe penalty of a judgment of non pros, should be suffered by the plaintiff in the feigned issue, in the absence of anything in the act requiring that it be imposed. In the present case, at any time from November 17,1900, until January 7, 1901, when the statement was filed, the plaintiff in the foreign attachment might have acted by asking for an order on the sheriff to proceed with the writ in his hands, or that a judgment of non pros, be entered in the feigned issue. If, during that period, court had not been in session, the plaintiff could have acted by an application for the proper rule at chambers; but she did nothing until after the claimant had filed its statement; and not until the day following, according to the record, was even protest made against the filing of it. Then it was too late for her to do anything but protest, for the time within which she might have acted she had allowed to pass by. She herself had not been vigilant, and she could not, after the claimant had acted, ask for judgment against it because it had not been diligent. Un [621] der the Procedure Act of May 25,1887, P. L. 271, a defendant is required to file his affidavit of defense within fifteen days after the plaintiff’s statement has been served. But it has never been pretended that, if a defendant, after the expiration of the period within which he ought to have filed his affidavit of defense, does file one, judgment can then, on motion, be taken against him for want of it. The penalty expressly provided by that act for the default of the defendant in filing his affidavit of defense is judgment against him, if moved for by the plaintiff; but' it has never been questioned, and cannot be, that an affidavit of defense, filed after the expiration of the statutory period, stands in the way of judgment for the plaintiff, if he did not move for it before the same was filed. “ The affidavit may be filed at any time before motion for judgment. Such is the governing principle in the case of a rule to plead, or to declare; and it is founded in justice and convenience; for a party, who does not enforce his right at the first moment, shows that he has not suffered by delay, and the signing of judgment is not imposed as a penalty. In this case the motion came too late : ” Gillespie v. Smith, 13 Pa. 65; and, in Ritter v. Leonard, 2 Parsons, 255, it was held that, if plaintiff enters a rule to show cause why judgment should not be entered for the want of an affidavit of defense, the defendant may file one at any time before the return day of the rule. This is the universally recognized practice: 1 T. & H. sec. 417. The act of 1897 provides no penalty for a claimant dilatory in filing his statement. True, the words are, “the bond and claimant’s statement of title shall be filed within two weeks after the sheriff’s rule for an issue shall be made absolute, unless the court, for cause shown, shall extend the time for doing so ; ” but they are mandatory only to the extent of giving the plaintiff the implied right to act after the claimant is in default; and, if he fails to act during the continuance of such default, he is by his silence, inviting the claimant to act. When the latter does act under such invitation, it is then too late to say he had no right to act and that what he did must, under the statute, be treated as invalid and void. The 10th section of the act provides that, if the defendant in the issue fail or refuse to file his affidavit of defense within fifteen days after notice of a rule to file the same, the court shall, upon motion [622] of tbe claimant, enter judgment against the defendant; but, as stated, there is. no provision at all in the act for judgment against the claimant for his delay. By implication only has the plaintiff in the execution a right to ask for judgment of non pros, against the plaintiff in the issue, if he is in default in filing his bond or statement. If the statement filed in this case was defective under the statute, the only way to get rid of it was by demurrer, for there is no rule of pleading which allows a motion for judgment of non pros, to be substituted for a demurrer to a defective narr. The statement was clearly defective, but it was amendable, and, as no reason was given why the amendment asked for should not be allowed, the fifth assignment of error is sustained. In Commonwealth v. Beary, 9 Pa. Superior Ct. 246, relied upon by the judge below, there is nothing inconsistent with the views here expressed. In that case, so far as can be gathered from the report of it, judgment of non pros, was moved for and granted after the expiration of two weeks, because no statement had been filed by the claimant at the time the motion was made. Judgment reversed and procedendo awarded.