Dennison v. Leech
Supreme Court of Pennsylvania
In error from the District Court of Allegheny. The plaintiff filed an affidavit of the amount due, $473.75, and filed a narr. after the return-day, and took judgment. The amount laid in the narr. was four hundred and seventy-three cents. This was amended so as to read $473.73. On affidavit the judgment was opened, and the defendant let into a defence as to so much as was not admitted to be due.
Read the full summary
In error from the District Court of Allegheny. The plaintiff filed an affidavit of the amount due, $473.75, and filed a narr. after the return-day, and took judgment. The amount laid in the narr. was four hundred and seventy-three cents. This was amended so as to read $473.73. On affidavit the judgment was opened, and the defendant let into a defence as to so much as was not admitted to be due. On the trial, the court considered the burden of proof was on the defendants; on which they declined • accepting the order opening the judgment, and it was reinstated by the court.
1Opinion of the CourtRogers, J.
We are of opinion that the judgment by default cannot be supported, either under the act of 13th June, 1836, or the rule of court. The declaration was filed before judgment, and after the return-day of the writ; but to entitle a party to judgment by default under the act, he must file his declaration at the time prescribed, viz: before the return-day: Forman v. Schricon, 8 W. & S. 43. But it is said the judgment is regular under the 66th Rule of Court, which entitles a plaintiff to judgment in debt or assumpsit as for want of an appearance when he files with his prsecipe an affidavit stating…
2Cases cited2 opinions
- Dox v. DeyNew York Supreme Court · 1829
- Foreman v. SchriconSupreme Court of Pennsylvania · 1844
3Cited by5 opinions
- Melloy's Sons v. Deal & BurtisSupreme Court of Pennsylvania · 1889
- Connor v. LyonSuperior Court of Pennsylvania · 1900
- McGowan v. KnittelCourt of Appeals for the Third Circuit · 1905
- Melloy's Sons v. Deal & BurtisSupreme Court of Pennsylvania · 1889
- Witman v. Schlegel, Pennsylvania Court of Common Pleas, Berks County1933