
    W. M. Applegate v. Charles H. Cohn and Milton Berger, now or late partners, trading under the firm of Cohn & Berger, Appellants.
    
      Practice—Superior Court—Appeals.
    
    Where a judgment has been entered for want of a sufficient affidavit of defense and subsequently a rule, taken to show cause why the judgment should not be stricken off, is discharged, from which decree an appeal is taken by defendant, such appeal does not raise the question of the validity of the judgment.
    Application for reargument sur appeal No. 9, Nov. T., 1895, from decree of C. P. Lehigh Co., April T., 1895, No. 80, discharging rule entered upon plaintiff to show cause why judgment against defendants, for want of a sufficient affidavit of defense, should not be opened or stricken off and a supplementary affidavit of defense allowed to be filed.
    Before Rice, P. J., Williard, Wickham, Beaver, Reeder, Oblady and Smith, JJ.
    Motion refused.
    The above appeal was argued December 18, 1895, and dismissed January 20, 1896, in an opinion by Beavee, J. See report of the case, 1 Super. Ct. 174.
    
      Edward Harvey, Morris Hoats with him, for the motion.
    
      T. F. Diefenderfer and C. J. Erdman, contra, for appellee.
    March 18, 1896.
   Beaver, J.,

This application is based, first, upon the allegation that there was but one judgment and from it the defendants appealed. This is an error. The defendants did not appeal from the judgment entered by the court on the 16th of March, 1895. Their appeal is from the decree of the court entered July 1, 1895, discharging the rule entered on April 1, 1895. The paper-book of the defendant expressly states that their appeal is from this decree. A definitive judgment of the court was entered on the 16th of March, and the appeal of the appellants on the 20th of July, 1895, was too late to raise the question of the validity of that judgment. It was, therefore, not necessary for us to pass upon the first and second assignments of error, inasmuch as what was before the court at the time of the entry of the original judgment was not involved in the case.

The case of Fritz v. Hathaway, 135 Pa. 274, upon which the appellants relied, does not apply to the facts in this case. If the appeal had been from the judgment of the court entered on the 16th of March, 1895, it would have been applicable. The plaintiff having filed his affidavit of defense to the original claim and having been heard in court in regard to the sufficiency of that affidavit, must be held as having presented his whole case, and the entry of the judgment is equivalent to a confession of judgment, so far as the sufficiency of the plaintiff’s statement is concerned. The entire case, as presented by the appellant, was passed upon in the opinion filed by this court, and it is not, therefore, necessary to reconsider the questions involved, as the conclusion would necessarily be the same.'

The application for reargument is, therefore, refused.  