Stern v. Lancaster

Opinion by Porter, J., The plaintiff brought an action of trespass against the defendants in the court below. There was, at that time, a rule of the court below permitting the plaintiff in ac [29] tions ex delicto to take judgment for want of an affidavit of defense, and this defendant attempted to comply with that rule by filing such an affidavit. The court subsequently made absolute a rule for judgment for want of a sufficient affidavit of defense. It is proper here to state that this was done prior to the decision of this court holding the rule of court in question invalid, so far as it applied to actions of trespass, because of the provisions of the Act of June 20,1919, P. L. 515, amending the Act of July 12, 1913, P. L. 711, creating the municipal court. The opinion of our Brother Henderson, in Smith v. Wertheimer, 76 Pa. Superior Ct. 210, so clearly states the reasons for holding the court below to be without authority to enter judgment for want of an affidavit of defense in an action of trespass that we deem further discussion of that question unnecessary. The plaintiff not being entitled to judgment if no affidavit of defense had been filed, it necessarily follows that the judgment for want of a sufficient affidavit of defense must be reversed: Bartoe v. Guckert et al., 158 Pa. 124. The judgment is reversed and a procedendo awarded.