Opinion
November 19, 1931.
December 11, 1931.
Practice C.P. — Statement of claim — Question of law raised by affidavit of defense in lieu of demurrer — Peremptory entry of judgment for plaintiff — Appeal — Amendment of order nunc pro tunc — Act of May 14, 1915, P.L. 483, Section 20.
Where in an action of assumpsit a court decides questions of law raised in accordance with Section 20 of the Act of May 14, 1915, P.L. 483 by an affidavit of defense in lieu of demurrer, against the defendant, the latter may file a supplemental affidavit of defense to the averments of facts of the statement of claim within fifteen days. The peremptory entering of a judgment for the plaintiff without granting the defendant such right will be reversed.
After the defendant has taken an appeal from such peremptory judgment the court cannot amend the order by directing the filing of a supplemental affidavit of defense within fifteen days.
Appeal No. 341, October T., 1931, by defendant from order and judgment of C.P., Delaware County, June T., 1930, No. 1635, in the case of Commonwealth of Pennsylvania, to use of Anna Trestrail, a minor, by her next friend, Albert C. Trestrail, and Albert C. Trestrail, in his own right v. The Media Title and Trust Company, a corporation, and the Media 69th Street Trust Company, a corporation.
Before TREXLER, P.J., KELLER, LINN, GAWTHROP, CUNNINGHAM, BALDRIGE and STADTFELD, JJ. Reversed.
Assumpsit on bail bond. Before MacDADE, J.
Affidavit of defense raising question of law.
The facts are stated in the opinion of the Superior Court.
The court decided the question of law against the defendant and entered a peremptory judgment for plaintiff. Defendant appealed.
Error assigned, among others, was the entry of judgment.
Thomas O. Haydock, for appellant.
Clement J. McGovern, and with him Wm. J. MacCarter, Jr., for appellees.
Argued November 19, 1931.
Assumpsit. The pleadings in this case disclose that the defendant in accordance to the Act of May 14, 1915, P.L. 483, Section 20, filed an affidavit of defense in lieu of the statutory demurrer. The court decided against the position taken by the defendant and entered judgment in favor of the plaintiff. In doing so, it lost sight of the provision in the above referred to section of the act which provides that "If the court shall decide the question of law, so raised, against the defendant, he may file a supplemental affidavit of defense to the averments of fact of the statement within fifteen days." This the defendant was prevented from doing by the peremptory entering of judgment by the court. He took an appeal from said judgment and after the appeal was taken, the court realizing its error, entered an amended order nunc pro tunc, attempting to cure the defect in said order by directing the defendant to file a supplemental affidavit of defense within fifteen days. It was not within the court's power to do this. The appeal in this case was taken on July 17, 1931, and the order of the court was made on July 21, 1931.
In Swartz v. Biben, 87 Pa. Super. 270, "the practice, sometimes indulged in by lower courts, of modifying (except in matters of form) or reversing orders from which an appeal has been taken, and is pending, is disapproved." See Com. v. Brown, 100 Pa. Super. 353, 357.
The judgment is reversed with a procedendo.