Shea v. Wells , 8 Pa. Super. 511 ( 1898 )

Per Curiam,

When a plaintiff moves for judgment for part of his demand under the Act of July 15, 1897, P. L. 276, it would be good practice to require him to specify the part as to which he claims the affidavit of defense to be insufficient and to set this forth in the rule to show cause. If that be done the defendant will know with certainty the issue he is called upon to meet, the record will show what the court was called upon to decide, and the hearing on appeal from the discharge of the rule will be confined, as it ought always to be, to a review of the decision upon the point raised in the court below. Had that practice been followed in the present case the record would have left no room for dispute as to this point. We infer however from statements of counsel and from the second specification of error that the motion was treated in the court below as a motion for judgment for "$150, tbe whole amount of the claim excepting that for extra work. Did the court err in not entering judgment-for that amount?

The act of April, 1874, allowing a writ of error from an interlocutory order refusing judgment for want of a sufficient affidavit of defense was intended to reach only clear cases of error' in law, and thus to prevent the delay of a trial. Reference to many of the decisions of the Supreme Court thus construing the law will be found in Land and Imp. Co. v. Mendinhall, 4 Pa. Superior Ct. 398, to which may be added Erie v. Y. M. C. A., 151 Pa. 168, and Ferree v. Young, 6 Pa. Superior Ct. 307. A fortiori ought this to be the rule on appeals from the refusal to. enter judgment for part of the demand, (assuming that the statute allows an appeal in such a case, a point left open for future consideration,) and the plaintiff has the security of a lien. Whether there was such a breach of the contract on the part of the defendant as entitled the plaintiff to an unconditional money judgment for his entire claim is a question of law which should be reserved until all the facts can be fully developed on the trial. It will then, be time enough to decide whether the case is distinguishable from Pierce v. Marple, 148 Pa. 69.

The appeal is dismissed at the costs of the plaintiff, but without prejudice, etc.