The citizen. (Honesdale, Pa.) 1908-1914, 1912-07-26
KELLEY & STEINMAk WIN CASE
IN SUPERIOR COURT
Searle X salmon, Local Attorneys,
Win Case for Kelly q Steinman
i'm SCranton-Judge Heads
Opinion of Case is Given
Herewith,

The case of Herbeck VS.. Kelly and
Steinman, which was argued in
Scranton on March 13 last, having
been appealed from the Common
Pleas Court of this county, has Just
been disposed of and we herewith
publish Judge Heads opinion of the
case. p. II. Iloff and c. A. Garratt
we're attorneys for the appellant and
Searle & Salmon for Kelley &c
Steinman.
"A brief statement of the record
facts will make manifest that the
learned judge below neither exceeded
his power nor abused his discretion
in striking off the judgment by de-
fault which the plaintiff had caused
improvidently to be entered. The
action is assumpsit; the summons is
sued April II, 1910, and was serv-
ed; the statement was not filed un-
til November 70, 1910. Passing by
some intermediate motions and or
ders, not now important, it appears
that on December II, 1910, the
plaintiff was permitted to amend the
statement previously filed and on the
following day gave notice Of the
amendment and that judgment would
be taken by default unless an affi-
davit of defense be filed within fif-
teen days. At the same time a rule
on the defendants to plead was en-
tered. The next day, December IA,
the defendants entered the plea of
non-assumpsit. The case was thus
put at issue by the action of the
plaintiff himself. Nevertheless, on
! December q, the defendant filed an
affidavit of defense. So the record
stood until March 6, 1911, when the
| plaintiff obtained leave to again
amend his declaration, and the same
| day filed a new statement of claim.
| This of course set up no new cause
of action. On March 27, 1911, the
plaintiff filed a praecipe upon which
the prothonotary entered judgment
by default for want of plea and af
| fidavit of defense and liquidated the
same at $1350.00. The defendants
| then obtained a rule to show cause
why this judgment should not be
stricken off. An answer was filed,
and on May 10, 1911, an order was
made striking off the judgment, and
from this order the plaintiff appealed.
''At the time the judgment by de-
fault was entered by the prothono-
tary there were standing upon the
record both an affidavit of defense
and a plea in bar. When the plain
tiff saw fit to amend his declaration
he could not thereby compel the de-
PENDANTS to again file another affi-
davit of defense. If the latter were
of opinion that the affidavit original
ly filed exhibited a good defense to
the plaintiffs action, there was
nothing to prevent them standing
upon it. If the plaintiff regarded it
as insufficient, he might move for
judgment for want of a sufficient af-
tidavit of defense, just as he could
have done originally, or just as if a
second affidavit had been filed to the
amended statement. The same is
true of the plea originally entered.
The plea was responsive to the cause
of action set forth in the declaration
and put the cause at issue. The
defendants were not required to
plead again each time the plaintiff
saw fit to amend in some particular
or other the statement of his cause
of action.
1t is clear then that the record
; exhibited no case for the entry of 6
, judgment by default by the pro-
! thonotary for want of an affidavit
: of defense or plea. Moreover, the
, learned judge below, in his opinion
: filed, points out that when leave wa:
: given to the plaintiff, after the cast
' was at issue, to amend his declara
: ton, the defendants were entitled L
= notice, and that the record does no
{ show any such notice or service
5 There can be no doubt of the cor
Y rectness of this statement in so ia
5 as the fact is to be ascertained b.
the record. But without discussing
the effect of what the p'aintiff'
counsel argue was notice at bar be
. cause leave to amend was given il
open court, we have already sutfi
ciently shown that the entry of judg
q. ment by default by the prothonotar
: was an improvident act. The learn
ed judge below was therefore righ
in striking it off.
The appeal was dismissed at tn
costs of the plaintiff but withou
prejudice, etc.
n al AIDES OF THE MACCAREES Ol