Gannon v. Fritz

1. In a rule of court, the 1st sect, was that if plaintiff should file (1.) “A specification of the items of his claim and a statement of facts necessary to supp’ort it,” the items and statements not denied by defendants in his answer should he taken as admitted.- (2.) If the specification and statement were not filed with the praecipe, the plaintiff should give defendant ten days’ notice and defendant should within ten days file his answer. (3.) This rule to 11 apply to a specification of set-off and statement of defence,” defendant in ten days after filing the same to notify plaintiff. (4.) If plaintiff failed to comply with any of the requirements, non pros, to he entered by the prothonotary; if defendant failed, judgment for default of a plea and affidavit of defence to be entered against him. Held, that the provision for notice by defendant was to regulate the practice when a set-off was interposed ; not when the defence was a denial, &c., of plaintiff’s claim. 2. Courts of original jurisdiction have an inherent right to establish and enforce rules to regulate their practice. 3. The expediency of a rule, in ordinary cases, is not a question for the Supreme Court; the regulation of its practice is for the sound discretion of every court. 4. The construction of their rules by the lower courts is ordinarily conclusive ; their discretion will be interfered with only where, wrong is man ifest. 5. Dailey v. Green, 3 Harris 118 ; Mylin’s Estate, 7 Watts 64, recognised.

Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1875, No. 170. This was an action of debt, brought April 28th 1875, by Jesse H. Fritz against John F. McKinney, Martin Gannon and Thomas J. Burchfield. The writ was served on Gannon and Burchfield, and returned “ Nihil” as to McKinney. The plaintiff filed an affidavit of claim as follows:— * * * “ That the plaintiff’s claim in above case is founded as fol lows: John F. McKinney, one of the defendants above named, was indebted to Jesse H. Fritz, the plaintiff above named, in a judgment, &c., in the sum of five hundred dollars, with interest on the same from the 5th day of July 1873; that a capias satisfaciendum was issued upon said judgment, &c.; for above sum, interest, and one hundred and fifty-four dollars costs; that the said John F. McKinney was arrested thereon, and while in the custody of the sheriff made application to B. F. Kennedy, Esq., the prothonotary of Allegheny county, to be released; that he gave a bond to Jesse H. Fritz, the said plaintiff, with Martin Gannon and Thomas J. Burchfield, the other defendants above named, as security; which bond was dated the 21st day of March 1873, and as shown by the record was duly approved on the same day by the said prothonotary ; said bond was in the sum of thirteen hundred dollars, conditioned that the said John F. McKinney would appear at the next term of Court of Common Pleas, No. 1, of Allegheny county, and present his petition for the benefit of the insolvent laws of this Commonwealth, and comply with all the requirements and abide the order of said court in his behalf, or in default thereof, if he failed to obtain his discharge as an insolvent debtor, he would surrender himself to the jail of said county; that on the approval of said bond the said John E. McKinney was released, and he filed his petition to June Term 1874, but he failed to obtain his discharge as an insolvent debtor or surrender himself to jail according to the conditions of said bond. All of which is still due and unpaid.” The affidavit of defence, filed May 10th 1875, was:— * * * “ That the conditions of the said bond sued on in this case were fully complied with; that the defendant, John E. McKinney, appeared at the term of the Court of Common Pleas of said county mentioned' in said bond, and then and there presented his petition for the benefit of the insolvent laws of this Commonwealth, and complied with all the requisitions of the said law, and did abide all the orders of said court in that behalf, and was duly discharged from further attendance by the order of said court, with the consent of said plaintiff. The said John E. McKinney having fully satisfied the claim and judgment of said plaintiff in full by the payment, by and with the direction and consent of said Jesse H. Eritz, to the plaintiff, of the sum of two hundred dollars, to said plaintiff’s attorney, which they agreed to, and did accept in full satisfaction of said claim.” The defendant gave no notice of filing his affidavit of defence, and plaintiff, May 21st 1875, directed “the prothonotary to enter judgment in the above case in favor of the plaintiff and against Martin Gannon and Thomas J. Burchfield, two of the defendants above named, who were served, in default of notice of filing affidavit of defence, see reg.” The plaintiff filed a specification with his praecipe, showing the amount due to be $705.31; and judgment was entered by the prothonotary for that sum. On May 22d 1875, on motion of John Barton, Esq., attorney for defendants, a rule was granted on plaintiff to show cause why the judgment in this case should not be opened. One of the reasons for opening the judgment was:— That said plaintiff was not entitled to notice of filing defendants’ affidavit of defence, as the same did not contain any matter of set-off, but merely claimed payment. The rule was discharged June 7th 1875. The defendants took a writ of error, and assigned for error:— The entering judgment against defendants, and discharging the rule to open the judgment. Rule 5th of the Court of Common Pleas of Allegheny county, under which judgment was entered, is as follows :— “ Sect. 1. In all eases the plaintiff shall file, with or before his declaration, a specification of the items of his claim, and a statement of facts necessary to support it, verified by affidavit, to which the defendant shall, within the time hereinafter specified, file an answer, verified by affidavit, and such items of the claim and material averments of the facts as are not directly and specifically traversed and denied by the answer shall be taken as admitted. “ Sect. 2. If the specification and statement be filed with the prsecipe they shall be treated also as an affidavit of claim, and the defendant shall, without further notice, file his answer thereto within the time required for filing an affidavit of defence, which answer shall be treated as an affidavit of defence. If the specification and statement be not filed with the prsecipe, the plaintiff shall, within ten days after filing the same, notify the defendant thereof, and the defendant shall, within- ten days after notice, file his answer thereto. “Sect. 3. This rule shall apply to a specification of set-off and statement of defence filed by the defendant, who shall, within ten days after filing the same, notify the plaintiff thereof, and the plaintiff shall, within ten days .after notice, file his reply thereto, verified by affidavit. “ Sect. 4. If the plaintiff fails to comply with any of the requirements of this rule, judgment of non pros, shall be entered against him by the prothonotary; and if the defendant fails to comply with any of the requirements thereof, the plaintiff shall be entitled to judgment against him as for default of a plea and affidavit of defence.”