Scholtz v. Crescent Loan & Savings Ass'n , 61 Pa. Super. 388 ( 1915 )

Opinion by

Trexler, J.,

The Act of Assembly of July 12, 1913, P. L. 711, establishing the Municipal Court of Philadelphia provides in the second paragraph of Section 12, that the defendant must file an answer to the plaintiff’s claim within ten days of the service of the statement upon him, in which answer he must either deny the facts averred in the plaintiff’s statement, or plead ignorance and demand proof as to such of which he has no knowledge. “After defendant has filed an answer the case shall he at issue, without any formal pleas, unless he sets up new matter in separate numbered paragraphs in addition to those answering plaintiff’s averments; in which case plaintiff may within five days answer the same in the same manner, and all new matter so averred by defendant and not denied by plaintiff, or of which he does not declare himself to be ignorant and demand proof, shall be deemed to be admitted. The case shall then be at issue. Plaintiff may move for judgment for want of a sufficient answer for all or a portion of his claim.” The plaintiff moved for judgment for want of a sufficient affidavit of defense and afterwards filed an answer to defendant’s statement of new matter. It is argued that his filing an answer was an abandonment of the rule for judgment. The court below did not so. regard it and entered judgment for the plaintiff.

We are not disposed to question its interpretation of the act of assembly in this respect. As long as the rule for judgment was undetermined, the case was not at issue. The plaintiff by filing an answer after he entered the rule for judgment merely complied with the duty cast upon him by the act. The question of the sufficiency of the affidavit was to be determined in limine before the case could be further proceeded with. The language of the act sets out a precise course of procedure; a statement by the plaintiff, an answer by the defendant, which puts the case at issue without further plea, unless new matter is alleged by the defendant, in which case the plaintiff has five days to answer. After setting out this course of proceeding the paragraph concludes that the plaintiff may move for judgment for want of a sufficient affidavit of defense. The act clearly shows that the fact that the case is at issue does not prevent a motion for judgment, or else as soon as the affidavit of defense, without an allegation of new matter, would be filed, the plaintiff would be deprived of the right to move for judgment for the reason that the case is at issue. It is evident that the framers of the act did not contemplate that such an effect should follow. Nor do we think the filing of an answer to defendant’s new matter should be considered as an abandonment of the rule for judgment, particularly when as stated before, the rule for judgment preceded the filing of the answer. It may be noted that parties have no option as to putting the case at issue. The filing of the answer, ipso facto, accomplishes that end. As was pointed out in the case of Dreifus v. Logan Iron & Steel Co., 245 Pa. 196, there is a distinction between cases where the plaintiff voluntarily enters a rule to plead and those in which the filing of a paper puts the case at issue. The filing of the answer to new matter can hardly be characterized as a step in the cause “calculated to mislead his opponent,” the phrase employed in Horner v. Horner, 145 Pa. 258.

As to the question of the sufficiency of the affidavit it will be noticed that it is admitted that the plaintiff, August Scholtz, has $500, which has not been paid to him out of the sum which he borrowed from defendant. Every allegation of plaintiff’s statement is practically admitted. The new matter set up in defense is that the plaintiff misrepresented, fraudulently, that he was about to pay $9,500 for the property upon which the loan was to be granted and that upon the strength of this misrepresentation the board of directors agreed to loan the amount of $2,000 to him subject7to a ground rent of $7,500, and that this misstatement of the plaintiff was not known to the defendant until the mortgage loan had been made; that if defendant association had knowledge of the real price, the loan would not have been granted, and that it was the duty of the plaintiff, by reason of the confidential relation he sustained to it to have disclosed this information. It will be noticed that the committee of the defendant association appraised the property as having a value of $10,600; that this value was the same as was fixed by the plaintiff in his application for the loan. Nowhere in the affidavit of defense is there any allegation that the alleged fraud of the plaintiff injured the defendant association or that the value of the property was not correctly stated by the applicant in his application. If the lie which the defendant alleges the plaintiff told as to what he intended to pay for the property deceived the defendant association and led it to do something by which it sustained harm, the nature of the loss should be stated distinctly. If the security which the defendant association has is ample to protect the loan, there is no reason why it should retain $500 of the amount which it granted to the plaintiff, nor has it the power to punish him for having told a falsehood by retaining the $500 due him. It is not asking too much of-the association if it was defrauded by the plaintiff to show what damage it sustained.

Judgment affirmed.