J. Howard Neely, Mifflintown, for appellant.
Edward E. Knauss, H. Brown Fay, Metzger & Wickersham, both of Harrisburg, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
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On June 13, 1950, summary judgment was entered by the prothonotary in favor of the plaintiff and against the defendants for want of an answer to plaintiff's complaint on praecipe of plaintiff's attorney, under Rule of Civil Procedure No. 1037, 12 P.S. Appendix. In entering judgment the prothonotary assessed damages in the amount claimed in the complaint. On June 21, 1950, defendants moved to strike off the judgment. This is defendants' appeal from the order of the lower court discharging the rule on their motion to strike.
A rule to strike off a judgment for irregularity on the face of the proceedings is in the nature of a demurrer to the record. Redington Hotel v. Guffey, 148 Pa. Super. 502, 25 A.2d 773. The proceeding is not equitable and a defendant is not required to answer
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on the merits, Richey v. Gibboney, 154 Pa. Super. 1, 7, 34 A.2d 913, if the complaint is not self-sustaining in setting up a good cause of action. Prosewicz v. Gorski, 151 Pa. Super. 309, 30 A.2d 224. A plaintiff's complaint is always open to attack on the ground that it is not self-sustaining, as on demurrer, when he asks for judgment for want of an answer. Cf. Parry v. First Nat. Bk. of Lansford, 270 Pa. 556, 113 A. 847.
From the complaint it appears that in August 1946, pursuant to an oral contract, defendants conveyed to plaintiff by warranty deed a woodland tract in Susquehanna Township, Juniata County, of 44 acres, more or less, for $2,200. At the time of settlement plaintiff was given an abstract of title which indicated that the grantors had marketable title to the 44-acre tract conveyed. Almost four years later plaintiff had a survey made of the tract, the boundaries of which had been pointed out to plaintiff by defendant Chubb before the sale was consummated. From the survey it appeared that the tract within the boundaries, which had been so identified by defendant Chubb, adjoined the land described in defendants' deed to plaintiff and comprised 39 acres, 114 perches. This tract was not owned by the defendants and was situate wholly in Greenwood Township. Plaintiff further averred that the tract which he intended to buy was valuable timber land whereas the 44-acre tract had little value. The gist of plaintiff's action on these averments is that at the consummation of the sale there was a mutual mistake of fact as to what plaintiff intended to buy and what defendants intended to sell. On that ground plaintiff sought to rescind, and recover back the purchase price.
As early as Gibson v. The Union Rolling Mill Company, 3 Watts 32, 37, it was said: 'the misconception
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which avoids a contract is necessarily a mutual one, and of a fact which entered into the contemplation of both parties as a condition of their assent'. The principle was affirmed in Holmes v. Camerson, 267 Pa. 90, 110 A. 81. And as recently as Vrabel v. Scholler, 369 Pa. 235, 85 A.2d 858, 860, the general rule is again stated thus: 'A contract [made under] a mutual mistake as to an essential fact which formed the inducement to it, may be rescinded on discovery of the mistake, if parties [can be] placed in their former position with reference to the subject-matter of it.' Blygh ...