delivered the opinion of the court, June 6th, 1885.
The judgment entered in this case was for want of an affidavit of defence. The record undoubtedly shows that a motion was made to strike off the judgment, thus: “And now, May 28th, 1883, defendant by attorney moves the court to strike off the judgment taken in default in this case for the reasons: 1st. Defendant had entered no appearance, hence plaintiff was not entitled to an affidavit of defence, and could not take judgment for want of an affidavit of defence. 2d. The plaintiff’s declaration is not such that plaintiff was entitled to judgment by default for want of appearance or affidavit of defence.” There was also a rule to open the judgment and *124let the defendant into a defence appearing on the record, but it is alleged that this was a mistaken entry by the prothonotary. Whether that be so or not is not very material, because the motion to strike off was certainly made and was subsequently refused, while, in point of fact, the judgment was opened. It is true, the defendant went to trial, but he was excluded from a trial ou the merits which his petition disclosed, by the ruling of the court that he could not go behind the judgment, but could only prove payment. While it may possibly be that the defendant could have taken a writ of error to the refusal of the court to strike off the judgment, we know of no reason for holding that he waived the right to take advantage of the error by going to trial under the order opening the judgment. The refusal to strike off the judgment was a part of the action of the court in the' course of the proceeding. As the judgment was opened at the same-time it was not final action closing the proceeding. Had the judgment not'been opened, the case would have been ended in the court below, and the defendant would then have been obliged to submit or take his writ of error. But he was not subjected to that alternative. He had a right to go to trial on the merits, and may very well have supposed that on the trial the merits disclosed in his petition would be heard. That is the usual course when judgments are opened, and unless that course is adopted, where the right to have judgment at all is attacked, as in this ease, it is not easy to see why the order opening the judgment should be made. Upon the petition in this case, we do not think that conditions should have been imposed by which the judgment should stand, and the defendant be permitted only to prove that he had paid it. His defence to it was that he did not owe any part of it, and that no judgment for any sum should ever have been entered against him. To open the judgment upon such a petition, and yet deny to the defendant the right to prove the facts set out in the petition, and thereby disprove "the plaintiff’s right to have any judgment, was only a mockery and a delusion. It is possible that the learned judge who made the order did not so intend it. But having been made, we cannot say that the learned judge who tried the case was wrong in his interpretation of it.
The defendant, however, is not without remedy. He had asked for a more radical redress, and if he was entitled to it he is not to be deprived of it merely because he accepted the opportunity of reaching the same result in the modified form which was offered to him. In Ringwalt v. Brindle, 9 P. F. S. 51, where the application was to open the judgment, we allowed an assignment of error to be filed here, averring that *125the judgment was irregularly entered in the court below, and reversed the judgment on that ground, although no application to strike off had been made in the Common Pleas, and all the assignments of error first filed were disallowed because they related to a refusal to open the judgment only. The case of Breden v. Gilliland, 17 P. F. S. 34, does not decide, as is claimed for the” defendant in error, that error in refusing to strike off is waived by the defendant in the judgment by trying the issue under an order to open. On the contrary, in that case the judgment in the court below was stricken off, which, being final, gave the plaintiff a right to a writ of error. But he did not avail himself of it, and went on and tried the case under the order to open. This was his voluntary act, and, having assented to the opening of his judgment and tried the case on its merits, of course he was ,too late to allege error in this court, in the order to strike off. In the case of Bradley v. Commonwealth, 7 Cas., 522, a judgment was opened on condition that it be tried on the merits. The action was on an administration bond signed by one surety only. The court below refused permission to defend on that ground, because the case was to be tried only on the merits; but we reversed the judgment on the ground that if the law requires two sureties the bond was illegal and the judgment by default was invalid. Lowuie, C. J., said: “ The défendant below had a right to a writ of error on the judgment by default, and we cannot regard him as abandoning the main principle on which he would expect a reversal and a judgment in his favor in order .to accept a new trial that excludes it.”
In the present case the plaintiffs claim was for professional services rendered as an attorney-at-law to the defendant. There was no book account, and no bill, note, bond or other instrument of writing for the payment' of money against the defendant, and of course the claim did not come within the rule of court authorizing judgments for want of an affidavit of defence. This being so, the defendant was not required to file an affidavit of defence in order to prevent judgment, and the plaintiff had no right to a judgment for want of such affidavit. It is manifest, therefore, upon the face of the record, that the judgment entered in the court below was irregular a,nd illegal, and should have been stricken off on the defendant’s motion. We held, in Commonwealth v. Hoffman, 24 P. F. S., on p. 111, that, “ Wherever upon the face of the record there appears no ground for a lawful judgment, the Court of Errors will reverse.” This was said as to a judgment for want of an affidavit of defence, in a case where it was not authorized by the rules, and other authorities to the *126same effect were collected. See,, also, Gottman v. Shoemaker, 5 Norr. 31. The assignments of error are all sustained.
The’ judgment entered on the verdict in this case is reversed and record remitted. And it is further ordered that the original judgment entered for want of ano affidavit of de- , fence be reversed and set aside, and procedendo awarded.