Muir v. Shinn

Opinion by Reeder, J., When this case was called for argument, the appellee not being present, it was considered upon the written and oral argument of the appellant. When our attention was called to the fact that the time fixed for the argument was a mistake and the absence of the appellee was through no error or fault of his, a reargument was ordered and at the reargument both sides were represented and heard. It appears upon an examination of the case that the amount claimed by the plaintiff in his affidavit of claim was $100; to part of this claim ($7.74) the affidavit of defense is full and adequate, as to the balance of the claim ($92.26) the affidavit of defense is in our opinion insufficient and inadequate. By the construction of the Supreme Court of the act of May 81, 1893, we cannot however enter judgment for a part of the claim upon a motion for judgment for want of a sufficient affidavit of defense, no matter how insufficient the affidavit of defense may be as to such part if it is sufficient as to any portion of the claim: Reilly et al. v. Daly, 159 Pa. 605. Justice Green in delivering the opinion of the court says, “ It is not clear that judgment can be entered for the plaintiffs under the act of May 31, 1893, P. L. 185. That act only provides that judgment may be taken for such amounts as may be admitted to be due, and that execution may issue for such admitted indebtedness with a right to proceed to trial for the remainder of the claim. It was doubtless passed to settle all doubts upon that subject, as there were different opinions relating to it. But it would be inapplicable, in this case because these affidavits do not admit anything to be due. While in our opinion they are insufficient as to two items of the claim they are not admissions of the correctness of three items and literally the case is not brought within the terms of the act.” This case is ruled by Reilly v. Daly. Judgment affirmed.