This is an action of assumpsit on a claim for drilling gas and oil wells. The only assignment of error relates to the validity, under the Practice Act of May 14, 1915, *172P. L. 483, of an order of the court below, refusing to grant a motion of defendants for judgment on a counterclaim.
The original statement of claim was filed November 30, 1920, and duly served on defendants, who, December 18, 1920, filed and properly served an affidavit of defense, setting up a counterclaim of $2,501.40; to this, plaintiff filed a reply on December 28, 1920. Subsequently, by leave of court1, plaintiff amended his statement of claim, which was filed in its revised form on August 29,1921, and served the same day, on defendants, with notice to file an affidavit of defense, as required by the Practice Act. Although defendants’ counsel accepted service of the amended statement, as of September 22, 1921, the affidavit of defense to it, and the accompanying counterclaim, were not filed until October 14, 1921, and were never properly served on plaintiff. A reply to the counterclaim was filed on the date last mentioned; but, up to the time of trial, plaintiff had failed to serve a copy of it on defendants.
On November 14, 1921, after the jury was sworn, defendants orally moved for judgment on their counterclaim, because they had not been legally served with a reply thereto. Straightway, plaintiff, in open court and before the defendants’ motion was reduced to writing, served on them a copy of his reply. The court allowed the service and suggested to defendants that they might move for a continuance if they felt they could not proceed with the trial; but they preferred to try the case at once.
In its order denying defendants’ motion, and recognizing as valid the service, at1 the trial, of plaintiff’s reply to defendants’ counterclaim, the court below stated the reasons which caused it to so exercise its discretion, as follows: the motion was not made until the jury had been sworn; there was service before the presentation of a written motion; and, finally, defendant's had set up substantially the same counterclaim in their *173original affidavit of defense, filed December 18, 1920, which had been properly served, and replied to by plaintiff.
The Practice Act of May 14, 1915, P. L. 483, 487, by section 22, provides that “The court, in its discretion, upon motion and notice to the opposite party, or his attorney, may extend the time fixed by this act for the filing or service of any pleading.”
We cannot say that' the court below abused its discretion in the present instance; therefore, no reversible error appears.
The, appeal is dismissed.