McClurg v. Futer

Opinion by Rice, P. J., In this action of assumpsit the plaintiff declared on a written agreement for the sale of real estate. Her statement of claim set forth quite fully the substance of the agreement and recited that a copy of it was attached, but, through inadvertence, apparently, the copy was not [490] attached. The defendant filed an affidavit of defense, in which, after setting forth fully his defense on the merits, he suggested that the plaintiff’s statement was not self-supporting and was defective, in that a copy of the agreement was not attached. Afterward, by leave of court, the plaintiff amended by filing a copy of the agreement. The record shows that the defendant’s attorney was present at the bar of the court when the amendment was allowed and the copy filed, but does not show that he objected to this ruling. On May 11, 1911, the plaintiff moved for judgment, and, in support of his motion, filed “assignments of insufficiency” of the affidavit. Thereupon the court granted a rule to show cause why judgment should not be entered for want of a sufficient affidavit of defense, and a copy of the rule and of the assignments was delivered to the defendant’s attorney on the same day. Four months later the rule to show cause was argued, and subsequently, by an opinion filed, the court held the affidavit to be insufficient, made the rule absolute, and entered judgment for the plaintiff. So far as the merits of the defense are concerned, we concur in the conclusion and the reasoning in support thereof which are set forth in the opinion of Judge Landis. But a question of procedure is raised which is not discussed in his opinion. If it was raised on the hearing of the rule to show cause, after the copy of the agreement was filed, the record does not show it. There can be no doubt of the propriety of the amendment. It did not change the cause of action, nor introduce any new matter as additional ground of recovery, nor change the averments of the claim in any particular whatever.. True, the requirement of the act of May 25, 1887, P. L. 271, that the statement shall be accompanied by a copy of the agreement sued on, was not originally complied with, and, therefore, the defendant could not have been compelled to file an affidavit of defense till it was complied with: Acme Mfg. Co. v. Reed, 181 Pa. 382. Although in his affidavit of defense the defendant suggested this omission, and, therefore, cannot [491] be said to have waived it, he nevertheless set up his defense on the merits, and apparently had no difficulty in doing so. It was held in Wetherill v. Stillman, 65 Pa. 105, which was followed by this court in Com. v. Yeisley, 6 Pa. Superior Ct. 273, that it is not error to grant a second rule for judgment after defects in the original statement have been cured by amendment. It is equally clear that the fact that an affidavit of defense was sufficient to prevent judgment as the record stood when it was filed, will not preclude a motion for judgment after the record has been amended. But in such case the defendant must have notice of the fact and substance of the amendment, and notice and an opportunity to file a new or supplemental affidavit if he so desires. In Jones v. Gordon, 124 Pa. 263, Mr. Justice Williams said: “Where an amended statement has been filed with leave of the court it is competent for the court to make such order for personal service thereof, and for the defendant’s reply, as the justice of the case may require. The plain purpose of the act of assembly is to reach the real point in dispute by the most direct road and in the most expeditious manner consistent with a due regard to the rights of the parties. We see no. objection to such a construction as shall secure this purpose; and we accordingly hold that the court allowing an amendment in the statement, may provide by rule or order for its actual service, and for judgment for want of a reply within such reasonable time as it may fix.” Here, it is undisputed that the original statement was served, and' that the defendant, by his attorney, was present at the bar of the court when the amendment was allowed and the copy filed. It would have been a useless formality to serve another copy of the statement, and a copy of the copy of the agreement that was filed in the very presence of the attorney and presumably with his knowledge of its contents. It is to be observed-in this connection that the act of 1887 does not require service of the statement in all cases, but that where it is filed after the return day, and the defendant [492] is notified thereof, judgment may be entered against him unless he shall file a sufficient affidavit of defense within fifteen days after being so notified. As has been seen, the defendant had sufficient notice of the filing of the copy and its contents. Further, he was given ample time to file a new or supplemental affidavit of defense, and the service of the rule to show cause was sufficient notice to him that, if such was not filed, the case would be disposed of upon the original affidavit, and in the light of the fact that the requirement of the statute as to the filing of a copy of the agreement had been complied with. The fair inference is that he was willing to rest on that affidavit and had nothing further to add to it. At any rate, the course pursued by the court fully protected his rights and was justified by the peculiar circumstances of the case. So far as the essentials of the rule of practice suggested by Justice Williams are concerned, they were substantially complied with by the procedure pursued in the present case. All the assignments of error are overruled and the judgment is affirmed.