
    Zimmerman v. Hartranft.
    
      Harold G. Ripple, for rule; B. F. Davis, contra.
    Jan. 19, 1929.
   Landis, P. J.,

— On Sept. 5, 1928, the plaintiff issued a summons in assumpsit in the above-mentioned case, returnable on the third Monday of September, 1928, which was Sept. 17, 1928. On Oct. 1, 1928, the defendant entered a rule on the plaintiff to file a statement within fifteen days, or judgment of non pros., and on Oct. 17, 1928, judgment of non pros. was entered. On the same day, but after the entry of this judgment, the plaintiff's statement was filed.

Section 16 of Eule xxv of the Court of Common Pleas, page 28, declares that “at any time after the return-day of the writ or after the entry of an appeal, a rule may be entered as of course upon the plaintiff or plaintiffs to file a statement within fifteen days after written notice served upon the said plaintiff or plaintiffs, his, her, its or their attorney of record, so to do, and in case of failure to file the same, the prothonotary shall, on motion of counsel in writing, enter a judgment of non pros. Upon sufficient cause shown, the court or a judge thereof may extend the same.”

It is clear that, if application had been made before the entry of the judgment, the time for filing the statement might have been extended. It seems, therefore, a fair interpretation of the rule that the non pros, can be stricken off and leave given to file the statement, if proper reasons be presented for such action. Here, it is averred that the plaintiff was sick, and has since died, and the claim, based upon a long book account, could not be filed because the statement could not be sworn to by the plaintiff on this account. Of course, his counsel should have made the application for an allowance of time before the fifteen days elapsed; but as he filed the statement one day after the expiration of that period, and on the same day on which the judgment was entered, he, no doubt, believed that he would be in time.

Under all the circumstances, we think the judgment of non pros, should be stricken off, and, as the statement has been filed, it is not now necessary to extend the time for filing it. Eule made absolute.

From George Ross Eshleman, Lancaster, Pa.  