Foster v. Langan

This is a rule for judgment for want of a sufficient affidavit of defense to a sci. fa. sur judgment. The affidavit of defense states that the original claim was based on an oral contract and that the amount involved has been paid in full and defendant is not indebted to the plaintiff in any wise. This is not a sufficient affidavit of defense, for plaintiff is entitled to know when, where and to whom the payment was made. The payment of the judgment would certainly be a good defense, but an averment of payment of the original claim at sometime prior to judgment, without satisfactory legal reason for not presenting the defense prior to judgment, may not now be of avail to defendant. The affidavit of defense to the sci. fa., therefore, must offer sufficient particulars to enable plaintiff to determine whether defense of payment is based on facts arising before or after the original judgment. However, if a meritorius defense exists, defendant should be allowed to present it and so will be allowed to amend his affidavit of defense.

Now, May 2, 1947, defendant is allowed 15 days from the date hereof to file an amended affidavit of defense; otherwise, judgment to be entered for plaintiff.