Rodgers v. Tranter

The record discloses that the court below discharged the rule for judgment for want of a sufficient affidavit of defense. After a certiorari from this court had been filed, the lower court vacated the order theretofore made and entered judgment for the amount admitted to be due. This it could not do and subsequently admitting its lack of power (citing Drabant v. Cure, 274 Pa. 180 and Swartz v. Biben, 87 Pa. Super. 270), requested this court on appeal to "go further than merely passing upon the discharge of the rule and dispose of the case finally upon its merits." This we did and entered judgment for the amount admitted to be due. The appellant raised the lack of power in the lower court in his argument before us, but afterwards counsel for both sides agreed upon the amount involved in the controversy. As this could only be of assistance to this court in determining the amount admitted to be due, to wit, 1/63 of the entire liability, we were led to believe that the appellant had receded from his position. He now presents a petition asking this court to confine itself to the proper record.

The only matter before us is the refusal of the court below to enter judgment for want of a sufficient affidavit of defense. Instead of discharging the rule the court should have entered judgment for the amount admitted to be due. Following the provision of the Act of April 18, 1874, P.L. 64 (see Fulton Farmers Association v. Bomberger,262 Pa. 43) we remit the record to the court below with direction to enter judgment against the defendant for such sum as to right and justice may belong, being the amount admitted to be due, unless other legal or equitable cause be shown to the court below why such judgment should not be entered. The judgment heretofore entered by us is set aside.