Meyer Goodfriend vs. Henry Bodenheimer Real Estate Light and Power Company, a Corporation, &c

Meyer Goodfriend vs. Henry Bodenheimer Real Estate Light and Power Company, a Corporation, &c. Pleading — Judgment for Want of Affidavit of Defense Denied When Affidavit of Demand Made Before Suit Brought. Under Rev. Code 1915, § 4169, authorizing default judgment notwithstanding defendant’s appearance in actions on mortgages, etc., unless defendant files an affidavit of defense, but providing that plaintiff must file an abstract or transcript of the mortgage, etc., with an affidavit stating the sum demanded and that it is justly due, the affidavit of demand must be rejected and judgment refused, where the abstract and affidavit were filed the day before the action was brought. (March 18, 1921) Boyce and Conrad, J. J., sitting. Herbert H. Ward, Jr., (of Ward, Gray and Neary) for plaintiff. David J. Reinhardt for defendant. Superior Court for New Castle County, March Term, 1921. Sci. Fa. Sur. Mortgage, No. 126, January Term, 1921. Action by Meyer Goodfriend against Henry Bodenheimer Real Estate, Light & Power Company. On motion for refusal of judgment notwithstanding the affidavit of demand filed. Judgment refused. This was an action for the foreclosure of a mortgage, brought on the 28th day of December, 1920, to the January term following, and a certified abstract of the mortgage, with an affidavit of demand annexed thereto, made the day before bringing the action, was filed. There were two returns of nihil. No affidavit of defense was filed at the first term. At the second term there was a motion for judgment for plaintiff, under section 4169, Rev. Code 1915, and rule of court. A counter motion was made for defendant that judgment be refused, notwithstanding the affidavit of demand filed, because the affidavit had been made before bringing the action. Miller v. Hart, 3 Penn. 279, 51 Atl. 603, and Woolley’s Del. Prac. § 261. Powell v. Carlisle, 1 Boyce, 3, 74 Atl. 365, was relied on for plaintiff. [MAJORITY — Boyce, J.] Boyce, J. Adhering to the decision of the court in Miller v. Hart, the affidavit of demand must be rejected and judgment for the plaintiff is refused.