Feather v. Hustead

• Decision Date: 01 July 1916
• Docket Number: 372
• Parties: Feather v. Hustead, Appellant
• Court: Pennsylvania Supreme Court

98 A. 971

254 Pa. 357

Feather v. Hustead, Appellant

No. 372

Supreme Court of Pennsylvania

July 1, 1916

Argued May 8, 1916

Appeal, No. 372, Jan. T., 1915, by defendant, from judgment of C.P. Fayette Co., June T., 1915, No. 516, entered for want of a sufficient affidavit of defense in case of J. I. Feather v. James M. Hustead, alias J. M. Hustead and John E. Hess. Affirmed.

Assumpsit on a promissory note.

Rule for judgment for want of a sufficient affidavit of defense. Before VAN SWEARINGEN, P.J.

The facts appear by the opinion of the Supreme Court.

The lower court made absolute plaintiff's rule for judgment for want of a sufficient affidavit of defense. Defendant appealed.

Error assigned, among others, was in making absolute plaintiff's rule for judgment.

The assignment of error is overruled, and the judgment is affirmed.

W. J Sturgis, with him S. J. Morrow, for appellant.

Robert E. Umbel, with him Harold L. Robinson, W. Cooke McKean and Allen D. Williams, for appellee.

Before BROWN, C.J., POTTER, MOSCHZISKER, FRAZER and WALLING, JJ.

OPINION

MR. JUSTICE MOSCHZISKER:

April 30, 1915, the plaintiff sued in the Common Pleas of Fayette County to recover on a promissory note; May 17, 1915, an affidavit of defense was entered as follows: "The plaintiff herein brought an action of assumpsit against the said J. M. Hustead and John E. Hess in the Court of Common Pleas of Greene County, Pennsylvania, to No. 192, June Term, 1915, on the identical note set forth in the plaintiff's statement herein, which action in said Court of Common Pleas of Greene County is still pending and undetermined." May 21, 1915, the plaintiff took a rule for judgment for want of a sufficient affidavit of defense, and in support thereof he assigned two reasons: (1) that the action in Greene County had been discontinued and the costs paid, and that no action of any kind or character was then pending on the note in question in any court whatever "excepting only the case at bar"; (2) that "the execution and delivery of the said note or correctness of the amount of the debt and the defendant's liability are in no wise questioned, but, in legal effect, are admitted." July 13, 1915, the rule was made absolute and judgment entered in favor of the plaintiff. John E. Hess, a defendant, has appealed.

The appellant contends that the court below, in disposing of the rule before it, should not have considered anything aside from the statement of claim and affidavit of defense. Ordinarily this would be true, but the affidavit in the present case was nothing more nor less than a plea in abatement; and a plea of this character was still allowed after the Act of May 25, 1887, P.L. 271, and before the new Practice Act of May 14, 1915, P.L. 483, which did not go into effect until January 1, 1916 (Fitzpatrick v. Riley, 163 Pa. 65; Meikle v. Northwestern Nat. Ins. Co., 243 Pa. 557, 559-60). In Speier v. Locust Laundry Inc., 56 Pa.Super. 323, 328, President Judge RICE said upon this subject that, since the Act of 1887, supra, "an affidavit of defense which alleges everything essential to a good plea in abatement, and distinctly shows that they are alleged for the purpose of abating the former action," should be given effect as such; and he added: "In such case the plaintiff is not taken by surprise by the use of the affidavit . . ., but is duly warned so that he may remove the objection by discontinuing the former action . . ., for the plaintiff may discontinue the former suit after plea pleaded, and reply that no such action is pending, and, of course, he may do so where the pendency of the action is set up in an affidavit of defense."

In the present case, both the affidavit which set up the matter in abatement and a general issue plea were filed on the same day. The rule is that a plea in abatement must be entered before one in bar, and that the former fails of effect after the filing of the latter: Smith v. People's Mut. Live Stock Insurance Co. of Penna., 173 Pa. 15, 26, 27. It is also a rule that "an issue raised in abatement should be heard at the first term and before the issues on the merits"; furthermore, "where a plea of another action pending is filed, plaintiff may elect whether to submit to judgment on the plea or dismiss the other suit, and if plaintiff confesses the truth of the plea by amending the defects pointed out, defendant is not prejudiced by the court's action in ignoring the plea": 31 Cyc. 186-7. Again, while there is a rule that, when matter in abatement is rejected, "the defendant has the right to answer over" (id. 187), yet, here, since the appellant did not ask to file a supplemental affidavit of defense, and does not now complain of a denial of that privilege, it is apparent that he was in no sense prejudiced by not being formally given an opportunity to answer over.

When the matter pleaded in abatement is the pendency of a former suit, "the truth of the plea is to be determined by an inspection of the records of the two actions" (Becker v. Lebanon & Myerstown St. Ry. Co., 25 Pa.Super. 367, 371); and it appears that, in the case at bar, on the hearing of the rule for judgment -- which was practically a replication to the plea in abatement -- an inspection of the record as certified showed the alleged other action to have been formally discontinued. This record proof was for the court to pass upon, and, since it conclusively proved the suit complained of in the affidavit of defense to be out of the way, it left the case as though no defense had been entered; and the court below so viewed it. It is not necessary to determine, however, whether or not the practice pursued, as above outlined, was justified by precedent in our State, or to decide...