Moore v. Schmidt

60 Pa. Super. 442, 1915 Pa. Super. LEXIS 216

• Court: Superior Court of Pennsylvania
• Decided: July 21, 1915
• Docket: Appeal, No. 2
• Status: Published

Opinion

Opinion by

Kephart, J.,

When this case was brought here on an appeal from the entry of judgment for want of a sufficient affidavit of defense, we held that the plaintiff’s statement, containing a simple allegation of fact, was answered by a denial of the fact: Moore v. Schmidt, 46 Pa. Superior Ct. 584. When the record was returned to the court below, leave was granted to the plaintiff to file an amended statement, amplifying the fact as alleged in the original statement, and reciting the various material incidents upon which the fact was founded. It set forth no new cause of action, nor new matter as an additional ground for recovery; it was properly allowed: Clark v. Pittsburgh Natural Gas Co., 184 Pa. 188. The court, in its order permitting the amendment to be made, directed the defendants to file a supplemental or amended affidavit of defense if they desired, within fifteen days after service of notice upon them so to do, together with a copy of the petition, and if they did not do so the plaintiff could move for judgment for want of a sufficient affidavit. The order contemplated an affidavit of defense responsive to the additional matter set up in the amended statement, unless the original affidavit was broad enough to cover the subsequent averments. The defendant filed an answer to this order, but declined to have it considered as a supplemental affidavit. Their contention before this court is that the plaintiff has no “right to call upon the defendants for a new affidavit of defense” after the first has been held sufficient. Mr. Justice Williams, in Jones v. Gordon, 124 Pa. 263, states the proposition: “Three questions are raised, viz:......(2) If an affidavit was necessary, could a second or third affidavit be required upon an amendment by leave of court of the plaintiff’s statement of his cause of action?......Amendments are liberally allowed in our practice. Where an amended statement has been filed with leave of the court it is competent for the court to make such order for personal service thereof, and for the defendant’s reply, as the justice of the case may require......And we accordingly hold that the court allowing an amendment in the statement, may provide by rule or order for its actual service, and for judgment for, want of a reply within such reasonable time as it may fix.” This court said in McClurg v. Futer, 52 Pa. Superior Ct. 485: “It was held in Wetherill v. Stillman, 65 Pa. 104, which was followed by this court in Com., ex rel., v. Yeisley, 6 Pa. Superior Ct. 273, that it is not error to grant a second rule for judgment after defects in the original statement have been cured by amendment. It is equally clear that the fact that the affidavit of defense was sufficient to prevent judgment as the record stood when it was filed, will not preclude a motion for judgment after the record has been amended. But in such case the defendant must have notice of the fact and substance of the amendment, and notice and an opportunity to file a new or supplemental affidavit if he so desires.” It will thus be seen that where the original statement is obscure or defective for any reason and is amended, a second rule for judgment may be obtained. While the court may order a supplemental affidavit of defense to be filed, it cannot compel the defendant to file this supplemental affidavit. Defendant may elect to stand upon his original affidavit, and on the second or third rules for judgment, if the defendant so elects, may require the court to pass upon the sufficiency of the original affidavit, in connection with the amended statement. “While we entertain no doubt as to the right of the'court to grant leave to file a supplemental affidavit of defense, whenever the original is obscure or otherwise defective, we think it contrary to well-established practice, under the Affidavit of Defense Act, to require it tp be done. If the defendant chooses to stand upon his affidavit, the court may pass upon its sufficiency, but it has no power to enforce an order to file supplemental affidavits”: Laird v. Campbell, 92 Pa. 470.

In Moore v. Schmidt, supra, it was pointed out that the plaintiff had failed to attach a certified copy of the record of the Superior Court of Fulton County, Georgia, showing a ratification and confirmation of the sale, but contented himself with the naked allegation that the sale has been confirmed by the court. When the amendment to the statement was filed, it contained a full and complete record of the Superior Court of Fulton County, Georgia, setting forth the necessary jurisdictional matters for the appointment of a receiver, and the proceeding incident to the ratification and confirmation of. this sale. ‘ The record sets forth that it was “ordered, adjudged, and decreed that the contract attached to the petition and made part thereof be allowed and confirmed and the receiver is ordered and directed to make the sale upon the terms and conditions, and in accordance with the stipulations contained in said contract.” Whether we consider the defendant as electing to stand upon his original affidavit, or as complying with the order of the court by filing a supplemental affidavit, in the nature of an answer to the order directing the supplemental affidavit to be filed, their defense is not sufficient to prevent summary judgment. It does not point out wherein this certified record of the Superior Court of Georgia is defective, or that thát court rescinded its decree, with a copy of the rescinding decree. The certified record of a court of another state, complete on its face and containing authority for an act, which it has authority to grant, cannot be set aside by a general averment that the record does not exist or that the person for whose benefit the authority was supposed to be given “failed to secure the confirmation” as contained in said record. If this was a fraudulent record it should be so averred and facts stated to sustain the averment. If no such record existed or no such receiver existed, the record as it did exist should have been obtained and filed as a part of the defense. The court below committed no error in entering judgment on the affidavit as filed.

The assignments of error are overruled and the judgment is affirmed at the cost of the appellants.