Opinion
April 16, 1940.
April 29, 1940.
Practice — Judgment for want of a sufficient affidavit of defense — Municipal corporation — Acts of May 3, 1917, P.L. 149 and May 14, 1915, P.L. 483.
1. Where an affidavit of defense is filed by one exempted from filing such pleading by the amendment of May 3, 1917, P.L. 149, to section 12 of the Practice Act of May 14, 1915, P.L. 483, it is regarded as surplusage, and does not deprive the defendant of any immunity enjoyed by it.
2. Judgment cannot be entered against a township, or other municipality, for want of a sufficient affidavit of defense.
Appeal, No. 270, April T., 1940, from judgment of C.P. Washington Co., August T., 1939, No. 306, in case of First National Bank of Monongahela City v. Carroll Township, Washington County.
Before KELLER, P.J., CUNNINGHAM, BALDRIGE, STADTFELD, PARKER, RHODES and HIRT, JJ. Judgment reversed.
Assumpsit.
Rule for judgment for want of a sufficient affidavit of defense made absolute and judgment entered for plaintiff, before HUGHES, P.J., and BURNSIDE, J., opinion by BURNSIDE, J. Defendant appealed.
Errors assigned related to the action of the court below in making absolute the rule for judgment and in directing the entry of judgment for plaintiff.
Paul N. Barna, for appellant.
Clarence O. Devore, for appellee.
Argued April 16, 1940.
By the amendment of May 3, 1917, P.L. 149, to section 12 of the Practice Act of 1915, P.L. 483, it was provided, "That counties, cities, boroughs, townships, school districts and other municipalities shall not be required to file an affidavit of defense." This incorporated into the Practice Act a similar provision of the Act of April 26, 1893, P.L. 26.
In consequence, judgment cannot be entered against a township, or other municipality, for want of a sufficient affidavit of defense: Schjerup v. Upper Merion Twp. Sch. Dist., 130 Pa. Super. 249, 196 A. 922. If an affidavit of defense is filed by one so exempted, it is regarded as surplusage, and does not deprive the defendant of any immunity enjoyed by it: Morgan v. Debon, 337 Pa. 452, 12 A.2d 5. See also along similar lines, Corry v. Penna. R.R. Co., 194 Pa. 516, 45 A. 341; Cowan v. Nagel, 89 Pa. Super. 122.
As the judgment must be reversed on this ground, we shall not consider questions on the merits, which can be better presented after the facts have been elicited on the trial.
Judgment reversed, with a procedendo.