Von Schirach v. Vance

86 A. 856, 239 Pa. 300, 1913 Pa. LEXIS 559

• Court: Supreme Court of Pennsylvania
• Decided: February 24, 1913
• Docket: Appeal, No. 147
• Status: Published

Opinion

Per Curiam,

This appeal is from an order discharging a rule to open a judgment entered for want of an affidavit of defense in an action on a mortgage. The third Saturday after the return day of the scire facias was December 23, 1911, and the plaintiff was then entitled to judgment, no affidavit of defense having been filed. Judgment was taken January 6,1912. On the same day an affidavit of defense was filed but we must assume that it was filed after judgment as this is averred in the answer and the hearing was on petition and answer, no depositions having been taken. 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: Mitchell on Motions and Rules 70; Barndollar v. Fogarty, 203 Pa. 617; Bordentown Banking Co. v. Restein, 214 Pa. 30.

As long as no advantage has been taken of a defendant’s default in not filing an affidavit of defense it is open to him to do what he was required to do at an earlier day, but when because of his default, judgment has been entered, the door is closed.

The judgment is affirmed.