Opinion
March 24, 1958.
April 21, 1958.
Practice — Failure to enter appearance — Assumpsit — Judgments — Default judgment — Acts of June 13, 1836, P.L. 568 and May 14, 1915, P.L. 483.
The fact that a complaint in an action of assumpsit was not indorsed with a notice to plead, as required by the Practice Act of May 14, 1915, P.L. 483, § 10 (which provided that the statement of claim shall be endorsed as follows: "To the within defendant: You are required to file an affidavit of defense to this statement of claim within fifteen days from the service hereof."), does not prevent the entry of judgment against the defendant in default of an appearance, under the provisions of the Act of June 13, 1836, P.L. 568, § 33 (which provides "If the defendant in any writ of summons as aforesaid shall not appear at the return day thereof, and the officer to whom such writ was directed shall make a return that it was served on the defendant ten days before the return day aforesaid, it shall be lawful for the plaintiff, having filed his declaration, to take judgment thereon for default of appearance, according to the rules established by the court to regulate the practice in this respect.").
Argued March 24, 1958. Before JONES, C. J., BELL, CHIDSEY, MUSMANNO, ARNOLD, JONES and COHEN, JJ.
Appeal, No. 51, March T., 1958, from order of Court of Common Pleas of Allegheny County, Oct. T., 1931, No. 2144, in case of County of Allegheny et al. v. W. H. Virgin, trading and doing business as Wilkinsburg Construction Company, et al. Order affirmed.
Same case in court below: 12 Pa. D. C.2d 40.
Proceedings on petition for rule to strike off default judgment in assumpsit.
Final order entered discharging rule, opinion by BROWN, J. Petitioner appealed.
John F. Gloeckner, with him Waldo P. Breeden, for appellant.
Frank Reich, for appellee.
The order of the court below discharging the rule obtained by the defendant on May 8, 1957, calling upon the plaintiff to show cause why a judgment entered against the defendant on October 29, 1931, for want of an appearance, should not be stricken off for a technical and immaterial defect in the statement of claim served with the summons, is affirmed on the opinion of Judge HOMER S. BROWN for the court below reported at 12 Pa. D. C.2d 40.
Affirmed.