Kinney v. Mitchell

ACHESON, Circuit Judge. If we assume that the order com- plained of was a definitive denial of the plaintiff’s motion for judgment for want of an affidavit of defense, still this writ of error cannot be sustained, for the reasons following: 1. The cause of action set out in the plaintiff’s statement of demand was not one requiring an affidavit of defense under the act of Assembly of the state of Pennsylvania of May 25, 1887 (P. D. 371), as that act has been construed by the Supreme Court of Pennsylvania in Corry v. Pennsylvania Railroad Co., 194 Pa. 516, 45 Atl. 341. In that case the court, speaking by Chief Justice Green, declared that under the act of May 25, 1887, the actions of assumpsit for which judgment may be taken for want of an affidavit of defense are limited to such as are founded on contract alone, and do not include cases in which the cause of action is ex delicto, or of a mixed character of contract and tort. 3. A motion to dismiss the suit for want of jurisdiction had been filed in the court below and was pending when the order appealed from was made, and when this writ of error was sued out. If the suit did not involve a dispute or controversy properly within the jurisdiction of the Circuit Court, it was the plain duty of that court to proceed no further therein, but to dismiss the suit. While the motion to dismiss for want of jurisdiction was pending the court could not properly grant the plaintiff’s motion for judgment for want of an affidavit of defense. The writ of error in this case is dismissed, with costs to the defendant in error.