Opinion
January 8, 1934.
January 30, 1934.
Practice — Judgment for want of reply — Entry — Court or prothonotary — Act of May 14, 1915, P. L. 483.
1. A judgment for want of a reply to a counterclaim in pursuance of section 17 of the Practice Act of May 14, 1915, P. L. 483, may be entered only by the court upon a rule for judgment for want of a reply or for want of a sufficient reply to the whole or any part of the set-off or counterclaim. [162-4]
2. A judgment entered by the prothonotary for want of a reply to a counterclaim is a nullity and without legal effect. [164]
Judgments — Conclusiveness — Void judgment — Laches.
3. Laches or passage of time, however great, does not estop a person against whom an invalid judgment has been entered from attacking such judgment. [164]
Practice — Rules of court — Construction — Review.
4. It is the prerogative of a court to construe and interpret rules which it enunciates, and an appellate court will not review the construction by a lower court of its own rules in the absence of abuse of power. [163-4]
Before FRAZER, C. J., SIMPSON, KEPHART, SCHAFFER, MAXEY, DREW and LINN, JJ.
Appeal, No. 61, Jan. T., 1934, by defendants, from judgment of C. P. Delaware Co., Dec. T., 1927, No. 1026, in case of School District of Haverford Township, to use of Paul Tedesco v. Ralph S. Herzog et al. Order striking off judgment affirmed.
Petition to strike off judgment for want of a reply. Before FRONEFIELD, P. J.
Order entered striking off judgment. Defendants appealed.
Error assigned was decree, quoting record.
E. Wallace Chadwick, with him Frank Rogers Donahue and Thomas A. Curran, for appellants.
John E. McDonough, for appellees, submitted printed brief.
Argued January 8, 1934.
In an action in assumpsit, to plaintiff's statement of claim, defendant filed his affidavit of defense containing a counterclaim and rule to reply. No reply was filed. Defendant had the prothonotary enter judgment against plaintiff for the full amount of the counterclaim. Some four or five years later plaintiff petitioned the court below to strike off the judgment, and it was so ordered. Defendant appeals.
The Practice Act of 1915, section 17, covers the case. This section provides as follows: "In actions of assumpsit the prothonotary may enter judgment for want of an affidavit of defense, or for any amount admitted or not denied to be due. The plaintiff may take a rule for judgment for want of a sufficient affidavit of defense to the whole or any part of his claim, and the court shall enter judgment or discharge the rule, as justice may require. When the defendant sets up a set-off or counterclaim, he may move for judgment against the plaintiff for want of a reply, or for want of a sufficient reply to the whole or any part of the set-off or counterclaim; and the court may enter judgment in favor of the plaintiff, or the defendant, for such amount as shall be found due, with leave to proceed for the balance." The amendments in the Act of April 22, 1929, P. L. 627, do not alter our conclusion since they do not touch the question as to who shall enter the judgment. It should be noted that in section 17, supra, the prothonotary is authorized to enter judgment for want of an affidavit of defense, or for any amount admitted or not denied to be due, but obviously this can have no weight in determining the proper procedure for the entering of judgment when the want of an affidavit of defense is not involved, for the legislature goes on in that section to provide for the case "when the defendant sets up a set-off or counterclaim." In such a case it is declared that the defendant" may move for judgment against the plaintiff for want of a reply, or for want of a sufficient reply to the whole or any part of the set-off or counterclaim; and the court may enter judgment in favor of the plaintiff, or the defendant, for such amount as shall be found due . . . . . . ."
These latter provisions differ from the former which dealt with the want of an affidavit of defense for the obvious reason that set-offs or counterclaims invariably involve a consideration of items or matters raised both in the statement of claim and in the affidavit of defense; all are interwoven; the consideration of one distinct from the other is generally impossible in effecting justice. Hence, it was ordained that the court should enter judgment in whatever amount was "found due." In order to determine what amount is due, if any, the court must consider the averments in the pleadings to decide that question, not the prothonotary. On a rule for judgment the whole record is considered: Federal Sales Co. v. Farrell, 264 Pa. 149.
Defendant relies upon Rule 132 of the court below. Rules of court must not be in opposition to an act of assembly, and the interpretation of rules of court is for the court which enunciates them. The court below has construed the meaning of its rule against the interpretation contended for by defendant, and, as there is no abuse of power, its conclusion is final: American Structural Steel Co. v. Annex Hotel Co., 226 Pa. 461; Booth v. Wolff Process Leather Co., 224 Pa. 583; Bair v. Hubartt, 139 Pa. 96.
Defendant urges that the lapse of four or five years since the judgment was entered, without action by plaintiff, amounts to laches which now estops plaintiff from attacking the judgment; but this cannot be for defendant never had a valid judgment since the prothonotary had no power to enter it: it was a nullity and without legal effect. Hence, the passage of time, however great, does not enter into a consideration of its validity: Penna. Stave Co.'s App., 225 Pa. 178; King v. Brooks, 72 Pa. 363; Castle v. Reynolds, 10 Watts 51; New Prague Flouring Mill Co. v. Kirschner, 70 Pa. Super. 74; Abeles v. Powell, 6 Pa. Super. 123.
The order striking off the judgment is affirmed.