
    Schmidt et ux. v. Steinacker
    
      F. Raymond Heuges, for plaintiffs.
    
      Herman Blumenthal, for defendant.
    October 17, 1947.
   MacNeille, P. J.,

We are considering defendant’s rule on plaintiffs to show cause why plaintiffs’ reply to new matter should not be stricken off.

The record in the case reveals that plaintiffs filed an amended bill in equity on December 14, 1946. On December 31, 1946, defendant filed an answer with new matter with notice to plaintiffs to answer new matter within 15 days. Plaintiffs failed to file their reply to new matter until July 18, 1947. However, defendant at no time has had an order entered of record that the facts contained in the new matter be taken pro confesso.

Rule 52 of the Pennsylvania Equity Rules provides in part as follows:

“To the additional facts, if any, he may require plaintiff to reply within fifteen, days after service of the answer, under penalty of having an order, as of cause, entered by defendant that they be taken as admitted, with like exceptions as in the case of an answer to the bill.”

Thus clearly defendant’s remedy was to have an order entered that the facts be taken as admitted. This defendant failed to do. We believe the answer should stand and the case be set for hearing on the issues so raised.

Wherefore, defendant’s rule to show cause why plaintiff’s reply to new matter should not be stricken off is discharged.  