#### Rich *v.*Boguszinski et ux., Appellants.

*Mechanic’s lien*— Affidavit *of defense*— Time *for filing*— Judg*ment for want of*— Act *of May 28,1918, P. L. 807.*

Under the provisions of the Act of May 23, 1913, P. L. 307, an affidavit of defense to a sci. fa. sur mechanic’s lien may be filed any time before judgment is taken for want of it.

*386An affidavit should not be stricken off merely because it is filed more than 15 days after the return day of the writ.

The sufficiency of an affidavit of defense, after it has been filed, is not to be tested on a motion to strike off. A motion for judgment for want of a sufficient affidavit is the proper practice.

Argued March 3,1925.

Appeal, No. 28, Feb. T., 1925, by defendants, from judgment of C. P. Luzerne Co., Dec. T., 1925, No. 1284, In re scire facias sur Mechanics’ Lien filed to No. 87, Dec. T., 1923, M. L. D., in the case of Mike Rich v. Michael Boguszinski and Mary Boguszinski, his wife.

Before Porter, Henderson, Trexler, Keller, Linn and Gawthrop, JJ.

Reversed.

Sci. fa. sur mechanic’s lien.

Rule to show cause why affidavit of defense should not be stricken off because it was not filed within 15 days after the return day of the writ. Before Fuller, P. J., and Garman, J.

The facts are stated in the opinion of the Superior Court.

The court made absolute the rule. Defendants appealed.

*Error assigned*was the decree of the court.

*W. L. Pace,*for appellants.

The appellee was not entitled to have the affidavit of defense stricken off merely because the appellants had not filed it within 15 days. The defendant may file his affidavit of defense more than 15 days after the service of the statement, if in the meantime the plaintiff has not moved for judgment: Bordentown Banking Co. v. Restein, 214 Pa. 30; Barndollar v. Fogarty, 203 Pa. 617; Com. v. Acker, 53 Pa. Superior Ct. 54; Von Schirach v. Vance, 239 Pa. 302; Lowenstein v. McGowan, 5 Pa. D. & D. Rep. 5; Miller, Assignee, v. Jackson, 27 Lan. L. Rev. 202; Hannock v. Tope and Tope, 77 Pa. Superior Ct. 101; Sinclair v. Evans, 5 Pa. Dist. Rep. 384; Hummel v. Meyers, 26 W. N. C. 279; *387Lukens v. Rea, 29 W. N. C. 65; Shifferstine et al. v. Sitler et al., 264 Pa. 290; Haardt & Devos v. Wright, 15 Pa. Dist. Rep. 20.

April 28, 1925:

*R. H. Morrish,*for appellee,

cited: Atlantic Terra Cotta Co. v. Carson, 53 Pa. Superior Ct. 91; Koons v. Harding, 3 D. & C. 741-747; McCay’s App., 37 Pa. 126.

Opinion by

Henderson, J.,

The plaintiff, a subcontractor, filed a mechanic’s lien against a lot and the building thereon owned by the defendants. A scire facias was issued returnable January 14, 1924. On the return day the defendants filed a general demurrer both to the writ and the lien. On March 6, 1924, the court overruled the demurrer because it did not specify any respect wherein “the writ” was insufficient. Disposition of the rule for judgment was postponed however for five days in order that the defendants might set forth special and substantial reasons in support of the demurrer; thereupon on March 7th, specifications of demurrer were filed. On March 10th, the plaintiff presented a petition to the court asking leave to amend the lien so that it would show that the petitioner served notice on the defendants October 17,1923, of his intention to file the lien; on which petition a rule to show cause was granted the day following at which time a rule was also granted to show cause why the lien should not be stricken off, and in the same order the demurrer was dismissed with a stay of proceedings pending the disposition of the rule. On May 9th, the rule to amend was made absolute and the rule to strike off the lien was discharged. On the latter date an affidavit of defense was filed and on May 14th a rule was granted to show cause why the affidavit of defense should not be stricken off for the reason, that it was not filed within fifteen days after the return day of the writ. On August 16, 1924, this rule was made absolute and the prothonotary was “directed to enter judgment for the plaintiff on his filing *388of praecipe to that effect.” The appellants have assigned as error the action of the court (a) in dismissing the demurrer to the lien; (b) in allowing the amendment to the lien; (c) in dismissing the demurrer to the scire facias; (d) the order striking off the.affidavit, and (e) the order directing the entering of . judgment. With respect to the first three assignments it is sufficient to say that they relate to interlocutory orders and the questions raised are not now before us for consideration. It may here be observed too with respect to the demurrer that the defendants subséquently filed an affidavit of defense wherein their objections to the writ and lien were set forth, and thus the issue was raised for which provision is made in the Mechanic’s Lien Act of 1901. By so doing they in effect abandon the special demurrer and are remitted to a trial of the questions raised by the affidavit of defense. The question for present consideration is therefore whether the court’s construction of the Act of 1913, P. L. 307, with respect to the time within which an affidavit of defense must be filed, is correct. The writ, as in the act prescribed, required the defendants to show cause at the return day why the amount of the claim should not be levied of the property in the way described, and also notified them to file their affidavit of defense in the office of the prothonotary of the said court within fifteen days after return day of the writ “and that otherwise judgment may be entered against” (them) for the whole amount of said claim. The provision with reference to the time of filing of affidavits of defense is quite similar to that contained in the Procedure Act of May 25,1887, and the Practice Act of May 14, 1905. In each the defendant is required to file an affidavit of defense within fifteen days from the date fixed. In none of these enactments is there a prohibition against filing an affidavit at a later date. The consequence of an omission to file within the fixed' period is that judgment may be taken against the defendant for want of an affidavit of defense. .This is the penalty he *389pays for failure to prevent a judgment by default. Numerous cases hold that under the Practice Act an affidavit of defense is in time if filed before judgment is entered in the case. In Barndollar v. Fogarty, 203 Pa. 617, the court in considering the same subject in a foreign attachment case under the Act of 1897, said: “Under the Procedure Act of May 25, 1887, a defendant is required to file his affidavit of defense within fifteen days after the plaintiff’s statement has been served. But it has never been pretended that, if a defendant, after the expiration of the period within which he ought to have filed his affidavit of defense, does file one, judgment can then, on motion, be taken against him for want of it.” In Bordentown Banking Co. v. Restein, 214 Pa. 30, the court referring to the fourth section of the Procedure Act of 1887, said: “It is true that in section 4 it is enacted that if the statement is served not less than fifteen days before the return day ‘it shall be the duty’ of the defendant to file an affidavit, etc., words which generally receive a mandatory construction. But the section must be read in its connection with those which follow and Avith the nature of the duty prescribed. These make it clear that the penalty for such neglect of duty by defendant is the risk of having a judgment entered against him, not the termination of his right to file his affidavit.” In Von Schirach v. Vance et ah, 239 Pa. 300, which was a scire facias sur mortgage the court said: “If the affidavit had been filed after the expiration of the statutory period, but before judgment had been entered, it would have been availing to prevent judgment.” No advantage having been taken of the default, the opportunity still existed to do what was required to be done at an earlier date. The language of the Act of May 23, 1913, P. L. 309, is that on failure to file an affidavit of defense within fifteen days judgment “may be” entered against the defendant. The language of the section is not as imperative as is found in the Procedure Act of 1887 and the Practice Act of 1915, and we see no reason for holding *390in the absence of language expressly to that effect that it was the intention of the legislature to close the door to a defense on the merits after the lapse of fifteen days. Consistency of construction requires us to hold that an affidavit of defense filed before judgment was taken for want of such affidavit was in time.

' It is contended by the appellee that the affidavit of defense was without merit and that the action of the court should be sustained on that account, but the sufficiency of an affidavit of defense, after it lias been filed, is not to be tested on a motion to strike off. A rule to show cause why judgment should not be entered for want of a sufficient affidavit is a familiar practice.

The order striking off the affidavit of defense is therefore reversed and the affidavit reinstated with a procedendo.