First National Bank v. Carroll Township

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.