Opinion
October 6, 1930.
November 20, 1930.
Practice C.P. — Trespass — Entry of judgment for want of sufficient affidavit of defense — Basic error — Correction of.
Under the Practice Act of 1915, P.L. 483, and its amendments, a judgment may not be entered for want of a sufficient affidavit of defense in an action of trespass and any rule of court to the contrary is invalid. The entry of judgment under such circumstances is a basic error and will be corrected by the appellate court even though the point was not raised in the court below.
Appeal No. 111, October T., 1930, by defendant from judgment of M.C., Philadelphia County, December T., 1929, No. 1245, in the case of Joseph F. Schanne v. E. Clarence Miller, Walter H. Lippincott, Henry D. Wieand, Carl F.R. Hassold and E. Russell Perkins, trading as Bioren Company.
Before TREXLER, P.J., KELLER, LINN, GAWTHROP, CUNNINGHAM, BALDRIGE and WHITMORE, JJ. Reversed.
Trespass to recover for wrongful conversion of certain goods. Before BONNIWELL, J.
Rule for judgment for want of a sufficient affidavit of defense.
The facts are stated in the opinion of the Superior Court.
The court made absolute the rule. Defendant appealed.
Error assigned, among others, was the order of the court.
J.F. Shrader of Guckes, Shrader, Burtt and Thornton, for appellant.
J. Kennard Weaver, for appellee.
Argued October 6, 1930.
Under the Practice Act of 1915, P.L. 483, and its amendments, judgment may not be entered for want of a sufficient affidavit of defense in an action of trespass: Smith v. Wertheimer, 76 Pa. Super. 210; Stern v. Lancaster, 79 Pa. Super. 27; Bartoe v. Guckert, 158 Pa. 124. Any rule of court to the contrary is invalid and should be revoked: Smith v. Wertheimer, supra. The error is a basic one, appearing on the face of the record, and will be corrected in this court even though the point was not raised in the court below.
To avoid a second error on the trial we will state that the facts set forth in the affidavit of defense filed presented a good defense to the plaintiff's action, and if established to the satisfaction of the jury will entitle defendants to a verdict.
The affidavit clearly averred facts which were lacking in the case of Vollmer v. Newburger, 277 Pa. 282, and the lack of which ruled that case, viz., that the purchase of the stock which plaintiff ordered defendants to buy at $4 1/8 per share had not actually been made and that defendants' letter of confirmation of purchase was due to an error of their New York correspondent who mistakenly notified them that the stock had been bought when none in fact had been purchased by or for the defendants, or by their correspondent for plaintiff's account or otherwise.
The judgment is reversed with a procedendo.