
    Com. of Pa. to Use v. The Media Title & Trust Co. et al., Appellants.
    Argued November 19,1931.
    
      Before Trexleu, P. J., Keller, Linn, Gawthrop, CunniHGBAM, Baldrige and Stadtfeld, JJ.
    
      Thomas O. Haydoclc, for appellant.
    
      Clement J. McGovern, and with him Wm. J. Mac-Carter, Jr., for appellees.
    December 11, 1931:
   Per Curiam,

Assumpsit. The pleadings in this case disclose that the defendant in accordance to the Act of May 14, 1915, P. L. 483, Section 20, filed an affidavit of defense in lieu of the statutory demurrer. The court decided against the position taken by the defendant and entered judgment in favor of the plaintiff. In doing so, it lost sight of the provision in the above referred to section of the act which provides that “If the court shall decide the question of law, so raised, against the defendant, he may file a supplemental affidavit of defense to the averments of fact of the statement within fifteen days.” This the defendant was prevented from doing by the peremptory entering of judgment by the court. He took an appeal from said judgment and after the appeal was taken, the court realizing its error, entered an amended order nunc pro tunc, attempting to cure the defect in said order by directing the defendant to file a supplemental affidavit of defense within fifteen days. It was not within the court’s power to do this. The appeal in this case was taken on July 17, 1931, and the order of the court was made on July 21, 1931.

In Swartz v. Biben, 87 Pa. Superior Ct. 270, “the practice, sometimes indulged in by lower courts, of modifying (except in matters of form) or reversing orders from which an appeal has been taken, and is pending, is disapproved.” See Com. v. Brown, 100 Pa. Superior Ct. 353, 357.

The judgment is reversed with a procedendo.  