Hickernell v. First National Bank , 62 Pa. 146 ( 1869 )

The opinion of the court was delivered,

by Agnew, J.

In these cases the defendants had entered rules to choose arbitrators, in one case to choose before the day of appearanee to the summons, and in the other three days afterwards. In the former the court struck off the rule before the day of appearance, and in the latter one day afterwards, and in each case entered judgment for default of appearance, under a rule of court which sets aside the appearance unless the defendant files an affidavit of defence at the time of appearance. We think this was error. The right to arbitrate is given by Act of Assembly, and may be claimed by the defendant before the return day of the summons: Henness v. Meyer, 4 Wharton 358. The act imposes but a single condition upon him, to wit: that he cannot take his rule during the week at which his cause is set down for trial, or within thirty days before the term. Unquestionably the court cannot say by rule he shall not be entitled to have his rule to arbitrate until he shall have filed an affidavit of defence, for this would be to add harder terms to the exercise of his rights, and to impose a condition not in the law. When the law intends an oath to be a precedent condition to the exercise of a right, as in appeal, writ of error, &c., it so declares; but not having so declared in this case, we must suppose the right was not intended to be so fettered. The power conferred on the courts to make rules to regulate the practice and expedite the determination of suits, &c., is subject to tbe proviso: “ That such rules shall not be inconsistent with the constitution and laws of this Commonwealth.” The arbitration law having fixed its own terms for the exercise of the right under it, it is inconsistent with its terms to impose harder and additional terms.

But in this case there is no such rule to limit the right, and the court applied to it a different rule, to wit, one providing for a judgment in default of an appearance, if an affidavit of defence be not filed. Now even this rule, which sets aside an actual appearance in the cause, because no affidavit of defence has been filed, is objectionable in form, though substantially good. Having the power to give judgment, even after appearance, in default of an affidavit of defence; the setting aside of the appearance and entering judgment for want of an appearance, is not very material. But this does not justify the court in striking out a rule to arbitrate, entered under a law which confers the right to have it, before the day of appearance. By this action of the court, the default rule of the court is made to retroact upon an election actually made by the defendant to have his cause tried by arbitrators. It seems to us this is in direct conflict with arbitration law.

Judgment reversed, and a procedendo awarded. -