
    Western National Bank v. Cotton, Oil and Fibre Company, Appellant.
    
      Judgment — ■Affidavit of defense — Judgment by default — Opening judgment — Practice, C. P. — Rule of court.
    
    Where a rule of court provides that an affidavit of defense must be filed within fifteen days from the filing of a rule to file an affidavit of defense, and judgment is entered on the sixteenth day for want of an affidavit of defense, and later on the same day an affidavit of defense is filed, the judgment cannot be disturbed, and it will stand as entered “in due course of law.” Such a rule of court is valid.
    Argued Oct. 8, 1907.
    Appeal, No. 2, Oct. T., 1907, by defendant, from order of C. P. No. 5, Phila. Co., Sept. T., 1906, No. 5,036, discharging rule to strike off a judgment in case of Western National Bank v. The Cotton, Oil & Fibre Company.
    Before Rige, P. J., Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Rule to strike off judgment.
    The rule was granted on the following affidavit:
    The Cotton, Oil and Fibre Company, through its general manager, J. S. Cochran, being duly sworn, deposes and says that the said company is the defendant in the above cause; that on November 27, 1906, copy of plaintiff’s statement was filed on defendant; that on or about nine o’clock on the morning of December 13, 1906, a few moments before defendant’s attorney arrived at the prothonotary’s office with defendant’s affidavit of defense, the plaintiff entered judgment in said cause; deponent further avers that he, nevertheless, did on December 13, 1906, file his affidavit of defense, a copy of which is attached hereto and made part hereof.
    Staake, P. J., filed the following opinion:
    The rule to strike off the judgment in this case is discharged on the authority of: North v. Yorke, 174 Pa. 349; Hall v. West Chester Pub. Co., 180 Pa. 561; Newbold v. Pennock, 154 Pa. 591; Lumber Co. v. Home Ins. Co., 167 Pa. 231.
    
      The court can only consider the regularity of the judgment, and, in the absence’ of any defect apparent on the face of the record, it cannot disturb the judgment regularly entered according to the provisions of the law and the rules of the court.
    The regularity of a judgment entered by a prothonotary, by order of the court, in compliance with the law and the general rules of the court, cannot be questioned. The prothonotary had authority to enter judgment in this case, in default of an affidavit of defense, on the sixteenth day after the service upon defendant of summons, statement, and rule to file affidavit of defense.
    As was said by the learned president judge of the court of common pleas of Monroe county, whose judgment was affirmed in Lumber Co. v. Home Ins. Co., 167 Pa. 231, “Taking the record as it is, we see nothing to warrant our interference with the judgment.”
    The authority for entering the judgment, under.the provisions of the Act of April 22, 1889, P. L. 41, is that of the court, whose judicial power is registered by the entry of the judgment by the prothonotary, in deference to the direction of the court, by its rule or standing order, as a judgment of non pros, for want of a plea, or for want of an appearance is entered. When a judgment is so entered by the prothonotary, it has the same effect as if moved for in open court. In the cases cited by defendant’s counsel as to the entry of judgment for want of a sufficient affidavit of defense, and for want of an affidavit of defense, there is not the “serious distinction” he asserts. In both cases it is the action of the court; in the one case, upon motion made in open court and after a hearing, and in the other, by the direction of the court in accordance with its rules or standing order. The act of the prothonotary' is connected with and dependent upon the authority and direction of the court, and is not by virtue of any official right or authority independent of such authority and direction of the court.
    We cannot find that the Act of April 22, 1889, P. L. 41, is unconstitutional for the reasons averred by the defendant’s counsel. The prothonotary exercises no “judicial power,” and his entry of judgment for the court and undér. its order is not the exercise of a “judicial function,” but is a mere clerical duty. The “relief” granted is by the court and not by the prothonotary. The evidence that the relief has been granted by the court is the entry of its decree by the prothonotary.
    November 18, 1907:
    On the authority of Banking Co. v. Restein, 214 Pa. 30, and Bradshaw Electro Sanitary Odor Co. v. Bradshaw, 27 Pa. Superior Ct. 196:
    “The validity of the judgment entered cannot be affected by the subsequent filing of the affidavit even upon the same day. If the rule was one to show cause why the judgment should not be opened, etc., there might be room for the possible exercise of some discretion by the court, if grounds for an appeal to such discretion were laid. This, however, was not a rule to open, but to strike off a judgment regularly entered in exact accordance with the legal rights of the plaintiff, and the legal requirements of our procedure Act of May 25, 1887, P. L. 271, and the act of April 22,1889.”
    The judgment in this case was entered “in due course of law” and cannot be disturbed.
    
      Error assigned was the order of the court.
    
      C. Oscar Beasley, for appellant.
    
      Robert W. Davis and Harris S. Sparhawlc, for appellees.
   Per Curiam,

This was an action of assumpsit upon a promissory note. On the sixteenth day after service of a copy of the statement and rule to file affidavit of defense, the plaintiff caused judgment to be entered in the prothonotary’s office for want of an affidavit of defense. Later in the day the defendant filed an affidavit of defense, and then upon motion and affidavit obtained a rule to show cause why the judgment should not be struck off. After hearing the court discharged the rule, and from that order this appeal was taken. In view of the clear and satisfactory opinion filed by the learned judge below, extended discussion by us of the questions sought to be raised by appellant’s counsel is unnecessary.

At the expiration of the fifteenth day the plaintiff had a right to judgment, and upon the sixteenth day, while the defendant was still actually in default, he caused judgment to be entered. The fact that it was entered before the affidavit of defense was filed appears by the defendant’s affidavit in support of the motion to strike off, and is undisputed. It is only by resort to the legal fiction that the affidavit of defense was on file every minute of the sixteenth day, or by holding that the court could not inquire into the question whether it was filed before or after the entry of judgment, that a plausible argument can be made against the regularity and validity of the judgment. It is true that in Duncan v. Bell, 28 Pa. 516, it was held that, even where the rule of court provided that the plaintiff should be entitled to judgment on a certain day unless an affidavit of defense should be filed before judgment should be asked for, the affidavit was in time if filed on that day although after judgment had been asked for and entered. But in the very recent case of Bordentown Banking Co. v. Restein, 214 Pa. 30, Chief Justice Mitchell, speaking of this ruling, says: “This, however, has not been the general practice under which the courts have usually considered the question of fractions of a day, so far as to inquire into the actual priority of the filing of the affidavit and the entry of judgment.” This precise question arose in Bradshaw Electro Sanitary Odor Co. v. Bradshaw, 27 Pa. Superior Ct. 196, and it was there held, after a full consideration and upon a state of facts precisely similar to that which is presented here, that it was competent to show that the judgment was entered before the affidavit of defense was filed, and that if so entered its validity could not be affected by the subsequent fifing of the affidavit, even upon the same day.

As to the validity of the rule of court which permits judgment for want of an affidavit of defense to be entered in the prothonotary’s office we concur in the views expressed by the learned judge below. We refer further to the recent case of Johnson v. Royal Insurance Co. of Liverpool, 218 Pa. 423, where, upon a consideration of the acts of 1887 and 1889, with reference to a rule of court permitting judgment by default to be entered for want of a plea, the court said: "There can be no doubt about the authority of the common pleas to make the rule under which this judgment was entered. It is expressly conferred by the act of 1889, and the rule is strictly in accordance with the act.” The case is also important and in line with earlier cases as showing the distinction between a motion to strike off a judgment regularly entered and a motion to open.

The order is affirmed at the costs of the appellant.  