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EVANS ET UX. v. ALLIED DISCOUNT CO. (09/13/62)

September 13, 1962

EVANS ET UX., APPELLANTS,
v.
ALLIED DISCOUNT CO.



Appeal, No. 226, Oct. T., 1962, from order of County Court of Philadelphia, June T., 1961, No. 12663-C, in case of Lawrence Evans et ux. v. Allied Discount Co. Order affirmed.

COUNSEL

Malcolm H. Waldron, Jr., with him Waldron and Weitzman, for appellant.

Marvin I. Block, with him Rappeport and Newman, for appellee.

Before Rhodes, P. J., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Flood

[ 199 Pa. Super. Page 241]

OPINION BY FLOOD, J.

The issue on this appeal is whether or not the court below abused its discretion in entering an order which opened a judgment for want of an answer and consolidated the suit with a prior pending action between the same parties in the same court. The facts and the reasons for entering the order complained of are stated as follows in the opinion of Judge SCHWARTZ for the court below:

"The plaintiffs in this action purchased an automobile which was financed by the defendant, Allied Discount Company. After a default the automobile was repossessed by the defendant and a judgment was entered against the Evans' on a judgment note. Upon petition, this judgment was opened and the Evans' filed a counterclaim. This action is still pending.

"On August 24, 1961, the Evans' filed a complaint in assumpsit setting up substantially the same averments that appear in the counterclaim in the pending action. The complaint avers that at the time of repossession the plaintiffs owed the defendant $2452.96 and the fair market value of the automobile was $2700, thus the plaintiffs are entitled to $247. In addition the complaint seeks recovery of the sum of $853 representing personal property contained in the automobile at the time of repossession.

"On September 14, 1961, the defendant, Allied Discount Company, filed preliminary objections. On October 17, 1961, an order was entered overruling the preliminary objections with leave to file an answer within 20 days and also with leave to file a petition to consolidate this action with the pending action of Allied Discount Company v. Evans.

"On December 14, 1961, judgment was entered for the plaintiffs for failure to file an answer and damages were assessed in the amount of $1180.84. On December 20, 1961, the defendant filed a rule to open the

[ 199 Pa. Super. Page 242]

    judgment which avers that after the preliminary objections were dismissed counsel for the plaintiffs forwarded to counsel for the defendant a stipulation to consolidate the two actions; that through inadvertence the presence of the stipulation in the file misled counsel into believing that an answer had been filed; ...


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