Laubheimer v. Johnson

Jones, J. delivered the opinion of the Court. In this case an action of assumpsit was brought in the Court below by the appellees against the appellant which was commenced on the 6th day of September, 1902. On the 3rd of October following the defendant (appellant here) pleaded,to the action the general issue pleas and set-off and rule replication was laid. On the same day the plaintiff filed a demand for a bill of particulars of the defendant’s plea of set-off to which the defendant responded on the 17th of October, 1902, by filing the particulars.

Nothing further intervened in the proceedings until the nth of September, 1903, when the defendant moved for judgment of non pros for the want of a replication. Upon this motion the Court ordered judgment entered as prayed, giving judgment for the defendant for costs. On the 14th of September—three days after the entry of the judgment of non pros—the plaintiffs (appellees here) moved to strike out the judgment of non pros and to reinstate the case assigning as .grounds for the motion that the judgment had been irregularly entered in “not having been taken when the case was called either upon preliminary call or upon peremptory call, or after notice thereof to the plaintiff;” and that the plaintiff had “a good and valid defense” to the plea of set-off “and failed to file a replication thereto through the inadvertence and oversight of his attorney,” and alleged that if the j udgment were “stricken out and the case reinstated upon the docket the defendant would be in every respect in the same ⁶⁸⁷ position as if the replication to said plea had been filed before the rule day therefor.” This motion the Court granted by striking out the judgment of non pros and ordering the case to be reinstated on the docket. This action of the Court was on the 26th of September, 1903, and on the same day the defendant filed an order of appeal from the “order striking out judgment of non pros.” The action was brought under the provisions of the Act of Assembly of 1886, ch. 184, commonly known as the Rule Day Act in which it is provided that “any action taken or order passed by any” of the Courts named therein “in relation to any judgment redered by it, if taken or passed within thirty days after the entry of such judgment or upon a motion or application made to it within said thirty days, shall have the same effect and force as it would have had under the practice