Marlin v. Waters , 127 Pa. 177 ( 1889 )

Opinion,

Mr. Justice Mitchell:

The plaintiff took judgment for want of an affidavit of defence in accordance with the Rule of Court of the Common Pleas, without reference to the procedure act of 1887, and the court struck off the judgment for failure to comply with the provisions of that act. This raises the single question in tin; ease, whether that act meant to leave prior methods of taking judgment for want of an affidavit of defence entirely unaffected, and to give a new and additional method of its own, or whether it intended to prescribe its method as the only proper one, and to supersede all others.

This question was virtually decided in Gould v. Gage, 118 Pa. 559, and has been so understood by the courts of this (Philadelphia) county: See Friederich v. Anderson, 22 W. N. 524. But as Gould v. Gage was argued rather upon the sufficiency of the copy filed, as a statement under the act of 1887, than upon the general question of the effect of the act on Buies of Court previously existing, the decision does not seem to have attracted general attention as to the latter point, and it may therefore be well to consider the matter a little more in detail.

The act was undoubtedly intended as a step towards uniformity of practice, and its provisions as to judgments for want of affidavits of defence are general, and applicable to all courts. Section 4 provides that “ the plaintiff shall be at liberty to serve a copy of his statement on the defendant,” and if such service is made not less than fifteen days before the return day, it shall be the duty of the defendant to file an affidavit of defence on or before the return day.

Section 6 provides that if the plaintiff shall neglect to serve a copy of his statement fifteen days before the return day, he may file it on, or any time after, the return day, and have judgment in fifteen days after notice of such filing.

The distinction between these two methods is plain. If tins plaintiff wants to hold the defendant to an affidavit immediately on his coming into court, i. e., on the return day, he must serve a copy of the statement. If however he chooses to wait till the defendant is in court, as required to be on the return day, then plaintiff need only file his statement and give notice. Under this system, the defendant is not bound to any unreasonable diligence, nor in any danger of being taken unaware. He knows he must be served either with a copy before the return day, or with a notice after it. It is highly improbable that the act meant to leave him subject to a third eontingency not imposed bjr its own terms, but by a Rule of Court. Thus in the present case the Rule of Court of Warren county entitles the plaintiff to judgment in twenty days without notice to the defendant, if a copy of the instrument of writing has been filed on or before the return day. If this rule is still in force, the defendant was liable in the present case to a judgment in fifteen days with notice, or in twenty days, without. A statute which as already said, was intended to promote uniformity, ought not to be so construed as to create or preserve such diversities, unless its language is perfectly clear to that effect.

The sole doubt arises from the fifth section, which provides that “judgment may be moved for want of an affidavit of defence, for the whole or part of the plaintiff’s claim, as the case may be, in accordance with the present practice in actions of debt and assumpsit.” It is however fairly inferable that this refers only to the mode of talcing judgment, and specially to taking it for part of the plaintiff’s claim. Tins, so far as I am aware, is only done under Rules of Court, at least I have not found any statute which directs or authorizes it, and it was probably with special reference to preserving this feature, as well as the general practice on the subject, that the fifth section was introduced. It was manifestly put in the wrong place, between the fourth and sixth sections. Those sections, as already seen, provide for the timé and conditions of judgment, and should be read in immediate connection. The fifth, which refers only to the mode, has a separate branch of the subject, and logically should have either preceded or followed the other two. But, though thus somewhat out of place, its purpose in the general scheme is clearly to save the prior practice, but only so far as not superseded by the new provisions of the act. We are therefore of opinion that the parts of the Rule of Court relating to the time and conditions of filing the statement and taking judgment, were superseded by the direct provisions of the act, and as plaintiff’s judgment failed to observe the latter, it was properly struck off.

Order affirmed.