Fisher v. Wannamacher

held that the party upon whom service was had, should have filed his affidavit at the first term of the court to which the original process was returnable, and not having so filed his affidavit, it was too late to file it at the second term, upon the return of the alias sci. fa., and that the plaintiff was therefore entitled to judgment, notwithstanding the affidavit of defence.

Note.—This decision follows and affirms the decision made at the April Term, 1898, in the case of Benjamin R. Riggin, Executor of George Hall, deceased, vs. Edward G. Kimes, Mortgagor, and Henry F. Hepburn, terre tenant, being Number 23 to October Term, 1897. In this case a sci. fa. was issued to the October Term, 1897, and service had upon Henry F. Hepburn, terre tenant, and nihil as to Edward G. Kimes, mortgagor; abstract and affidavit also filed. An alias sci. fa. was issued to the April Term, 1898, and returned nihil as to all defendants. On the return of the alias sci. fa., Hepburn filed an affidavit of defence. The Court there held that he should have filed his affidavit of defence at the return of the original writ, and that it was too late to file it upon the return of the alias sci. fa., and therefore rendered judgment in favor of the plaintiff, notwithstanding the affidavit of defence.