
    Haas et al. v. Smith
    
      Victor J. Roberts, of High, Swartz, Flynn & Roberts, for plaintiffs.
    
      Robert Trucksess, for defendant.
    September 14, 1945.
   Knight, P. J.,

In this case plaintiff brought suit in assumpsit against defendant before a justice of the peace. After hearing, judgment was rendered on December 27,1944, in favor of plaintiff, in the sum of $93.

On January 5,1945, defendant filed in this court an appeal from that judgment. Presumably through oversight of counsel, appellant failed to comply with section 2 of Rule 4 of our rules of court, which provides:

“The appellant shall within five days after filing transcript of appeal give written notice to the opposite party of the filing of the appeal and proof of service thereof shall be filed of record . . .”

It is to be noted that the rule itself provides no penalty for such failure to comply.

Plaintiff moved to strike off the appeal on the sole ground that no notice was given, and no proof of service was filed. After argument, plaintiff’s counsel informed the court that it might be considered inappropriate to strike off an appeal technically complete and regular on its face, and requested that plaintiff’s motion be treated as a motion for judgment of non pros for failure to comply with the rule of court.

Such a judgment would be proper against a party who failed to prosecute his action (or any part of it) in due time, but on the other hand we are not disposed to preclude a defendant from presenting a valid defense merely because of an oversight of counsel.

Therefore, in order to be fair to both parties, we make the following order :

• And now, September 14, 1945, upon consideration ■ of the foregoing case, the prothonotary is directed to enter a judgment of non pros against defendant, without prejudice, however, to the right of defendant to apply, to the court to set aside said judgment upon his showing that he has a meritorious defense to be presented in the suit.  