Bradshaw Electro Sanitary Odor Co. v. Bradshaw

Opinion by Beaver, J., Judgment in an action of assumpsit, entered on the morning of the sixteenth day after service of plaintiff’s statement of claim upon the defendant, was stricken off by the court below. Summons and copy of plaintiff’s statement of- claim were served by the sheriff upon the defendant June 14,1904, returnable third Monday of June. An affidavit of defense was, therefore, due, at the latest, June 29. On June 30, before the filing of an affidavit of defense, the plaintiff, as it had an undoubted right to do, took judgment upon motion for want of an affidavit of defense. Damages were regularly assessed and judgment entered. The plaintiff thereby acquired a lien upon the real estate of the defendant, if he had any. This was a possible, valuable, legal right regularly obtained under statutory authority. What would justify striking off such a judgment? Clearly only some irregularity which affected the integrity of the record and the validity of the judgment itself. But nothing of this is alleged in the petition. The validity of the judgment being in question it was competent ■ to show that it was entered before the affidavit of defense was filed and if so entered its validity could not be affected by the subsequent filing of the affidavit even upon the same day: Collins v. McKee, 3 Sadler, 213. If the rule was one to show cause why the judgment should [199] not be opened, etc., there might be room for the possible exercise of some discretion by the court below, if grounds for an appeal to such discretion were laid. This, however, was not a rule to open but to strike off a judgment regularly entered in exact accordance with the legal rights of the plaintiff and the legal requirements of our procedure act of 1887, P. L. 271. This case, as we view it, comes within North v. Yorke, 174 Pa. 349. The act of 1887 requires the affidavit of defense in such a case as this to be filed within fifteen days. Defendant having failed to do this and the plaintiff having availed itself of a legal right, the court could not extend the statutory period for filing the affidavit, at least not if by so doing any of the legal rights of the plaintiff were interfered with. This sufficiently disposes of the real question involved here and it is not necessary for us to determine now whether or not a court can, under any circumstances, extend the time fixed in our procedure act for filing an affidavit of defense beyond fifteen days. The order of the court below, making absolute the rule to show cause why the judgment entered in this case should not be stricken off, is reversed and the rule is discharged.