Kyler v. Christman

Pee Curiam, Upon appeal from the discharge of the plaintiff’s rule for judgment for wánt of a sufficient affidavit of defense we made the following order: “ Judgment affirmed with permission to plaintiff to move in the court below for judgment for so much of his [78] claim as to which the affidavit is deemed herein to be insufficient.” The effect of this order was to put the plaintiff in precisely the same position, so far as his right to judgment for part of his claim under the act of 1897, was concerned, that he would have been in, if the conclusion of the court below upon the sufficiency of the original affidavit had been the same as ours. It was not intended, nor can it be so construed, to abridge the discretionary power of the common pleas to permit a supplemental or even a second or third supplemental affidavit of defense to be filed, if it appears probable that the defense is good and the defect merely in the mode of statement. “ The extent of the indulgence is largely in the discretion of the court: ” Andrews v. Blue Ridge Packing Company, 206 Pa. 370; Loeper v. Haas, 24 Pa. Superior Ct. 184. Promptly after our order was entered, and before the plaintiff had moved for judgment pursuant thereto, the defendant asked leave to file a supplemental affidavit which showed, not only a valid defense upon the merits, but also that the plaintiff’s demand was founded in part upon a written contract, a copy of which he had not attached to his statement as required by the act of 1887. Under all the circumstances, more fully set forth in Judge Hart’s opinion, the court did not exceed its discretionary power in permitting a supplemental affidavit to be filed and remitting the parties to a jury trial. The appeal is dismissed at the appellant’s cost and record remitted with a procedendo.