so adjusted that they could be used together. sets and assumption of contracts-Sim- The cement floors were laid over practically ilarity of names.
the whole lot. This was a new within the meaning of the law. -EISENERG V. WOLF, 173
-NORTH V. YORK METAL ALLOYS CO. (NO. 2), 65.
Mechanics' liens-Act 4 June, 1901, P. NEW TRIAL. L. 431-Necessity for affidavit support- ing statement of claim-Practice, C. P.
Act 17 April, 1905. P. L. 172, Paragraph 2 of Section 1-Requisites of statement -Dates of furnishing materia!-- Con- tractor and sub-contractor.
Neither the Act 4 June, 1901, P. L. 431, nor any of its amendments regulating the filing of mechanics' liens, specifically requires that the claim be supported by affidavit, although it is good practice to have such claims sworn to.
Where on the face of a mechanic's lien, it appears that the contract to furnish the ma- terials was with the owner, it is sufficient under paragraph 2 of Section 1 of the Act 17 April, 1905, P. L. 172, to set forth the amount claimed to be due, the kind and amount of materials furnished, and that the materials were furnished over a period of time, giving the dates of the first and last deliveries.
On a motion to strike off a mechanic's lien the court cannot decide the issue whether the claimant is a contractor as averred in the statement or a sub-contractor as con- tended by the petitioner.
-KASE ET AL. V. SEGAL 184
MERCANTILE LICENSE.
Taxation Mercantile license tax Act 2 May, 1899, P. L. 184 9 April, 1870, P. L. 59-Plumbers.
-MILLER'S APPEAL, 202
New tria!-Impeachment of verdict--
Ifter-discovered evidence-Intoxication of juror-Record of conviction.
It is never permitted to impeach a verdict by the declarations of a juror as to what influenced him.
Where a juror becomes intoxicated upon the trial, and from time to time goes to sleep, it is the duty of counsel to bring the matter to the attention of the court at once. The trial of a case is under the inspection of the court, and unless the court personally happened in the jury-room, or as as to what notices a juror's condition, or has it brought to its attention during a trial, allegations that the juror was intoxicated or asleep will not be considered, especially where the court has a distinct recollection that the juror was neither intoxicated nor asleep.
A witness may be asked, when on the stand, upon cross-examination, whether he had been convicted of a crime or not, for the purpose of affecting his credibility, or the other side may introduce the record that he has been convicted of a crime, without in- terrogating the witness upon the subject. -COMMONWEALTH V. WILSON, 33
New trial granted because irrelevant matter may have influenced jury-The Act granting of a new trial is within the dis- cretion of the trial court.
Where, in the trial of a case, irrelevant matter was brought before the jury, and the court was in great doubt as to the extent to which this matter influenced the minds of
Mechanic's lien-Sheriff's special re-the jury in arriving at the verdict, a new turn-Exceptions to schedule of distri-trial was granted. bution-Mortgagee New structure
The granting of a new trial is within the
Alteration and repairs-Acts of 1901 1ower of the trial court, and the appellate and 1905.
MUNICIPAL LIEN.
Practice Municipal lien Counter- claim for damages in trespass-When counter-claim will not be stricken off— Acts of May 4, 1915, and May 28, 1915.
-NEW HOLLAND BOROUGH V. RANCK, OWN- ER, ETC., 158
court will not interfere with the inherit ex- ercise of that authority, except in cases where the record shows an unmistakable abuse of discretion. -RIEST V. WOGAN, 69
Practice New trial on court's own motion.
On a rule for judgment n. o. v., the court, being of the opinion that such a judgment could not be entered, but that a new trial should be awarded, of its own motion, en- tered a rule to show cause why a new trial should not be granted.
Employer and employee-Sale of as-AMERICAN INSULATION CO., INC. V. BEST. 140
Such use, at the instance of the owners of properties in the neighborhood, will be en-
maker Want of consideration Suffi- -WHEALEN ET AL. V. SATZ ET AL., 90 ciency of evidence to establish defense- Question for jury.
A total or partial want or failure of con-
Public Officers - Supervisors - Fur- sideration for a promissory note may be in-nishing own teams- Criminal law –
sisted upon as a defense between any of the
original parties to the note.
An accommodation note is one to which the accommodating party put his name, without consideration, for the purpose of accommodating some other party who is to use it and is expected to pay it; and between these parties the consideration may be shown to be wanting.
in a suit on a promissory note, between the original parties, one party thereto may defend upon the ground that he was induced to sign by reason of a prom- ise which the other made and, in the suit,
Road law-Act of March 31, 1860.
An indictment charging that a supervisor furnished his own team for work on a town- ship road and accepted pay for the same, charges an offence under section 66 of the Act of March 31, 1860, P. L. 400, although it is not averred that there was any corrupt or dishonest intent or unfairness in the price charged for the services. -COMMONWEALTH V. McCOY, 42
ORPHANS' COURT.
Orphans' court-Jurisdiction
attempts to repudiate; and in such case, it stantial dispute-Restraining and man- need not be averred nor proved that the in-datory order on executor. ducing promise was omitted from the note by fraud, accident or mistake.
On a demurrer to a petition in the orphans' court, raising the question of the jurisdiction of the court, the averments in the petition must be taken as true.
A demurrer to a petition in the orphans' court does not raise "a substantial dispute" within the intendment of the act of assem-
bly providing for the sending of issues by he orphans' court to the common pleas in "ertain cases in which there is a substan- tial dispute.
A fact is properly said to be in disput when it is alleged by one party and denied by another, and both with some show of a mere naked allegation without
evidence or against the evidence, cannot cre- ate a dispute within the meaning of the law.
A substantial dispute exists when a con- clusion of fact to be drawn from the testi-
mony is one about which reasonable men might honestly differ.
The orphans' court has jurisdiction of a petition averring that an executor has in h's custody, as executor, certain shares of the capital stock of certain corporations which were pledged, by the petitioner to the tes- tator in his life time, and which the executor contends are the unqualified property of the
Nuisance Automobiles- Public ser- vice garage in residential district- Build- tate, and praying for an order restraining ing restriction-Injunction.
the executor from disposing of the same un- til further order of the court, and ordering him to deliver the same to the petitioner upon the payment of the debt for which the petition avers the stock was pledged. GREENAWAY'S ESTATE, 169
Declaratory judgments-Jurisdiction of orphans' court-Uniform Declaratory
Judgments Act of June 18, 1923, P. L. ency of the averment, the admission did the $40.
defendant no harm. -WETTER V. SMITH, 35
Plaintiff's statement-Endorsement of address where papers may be served-
Decedents' Estates-Orphans' court- Suit pending in other court-Claimant must present claim in orphans' court-General reasons to strike off - Gross
Jurisdiction.
-HARVEY'S ESTATE, 99
claims for damages-Particulars of neg- ligence must be shown.
A plaintiff's statement which does not have endorsed thereon an address within the county where all papers are to be served,
Partition-Appointment of an auditor will be stricken off. -Confirmation of account.
In all cases where, in consequence of pro- ceedings in partition, any share in real es- tate shall be converted into cash, the or- phans' court may appoint an auditor to as- certain whether there are any liens or other incumbrances on such real estate.
The administrator or trustee is the proper party to make the application for an auditor which should be done before confirmation of the sale.
-ESTATE OF JOHN L. GEIGER, 11
A reason in support of a motion to strike off a plaintiff's statement which states in general terms that the statement lacks "con- ciseness," without pointing out specifically the alleged defect, is too general, and will not be considered.
Claims for damages in a plaintiff's state- ment, in trespass, must be itemized and spe- cific; claims for gross sums disbursed "for doctors, medicines, hospitals, nursings, do- mestic help," etc., are not within the re- quirements of the Practice Act.
In a suit in trespass where the charge is negligence arising out of alleged acts of omission, the grounds of complaint must be
Judgments-Opening-Hearing on pe- stated concisely and distinctly in the plain-
tition and answer.
-ANSTINE V. WILT, ET AL., 165
PLAINTIFFS' STATEMENTS.
Plaintiff's statement - Husband and wife-Automobiles - Collision State- ment-Averment of wife's agency as driver-Admission - Practice Act of May 14, 1915.
The mere relation of husband and wife
does not make the wife the husband's agent. In an action of trespass to recover for damages to an automobile caused in a colli- sion with another automobile owned by de- fendant, an averment in the statement of claim "that said automobile belonging to the above named defendant, at said time and place was being operated with the knowl- edge, consent, approval and sanction of the above named defendant, by his wife," is an insufficient averment of her agency, and, if no other evidence is offered at the trial as to her authority, or whether the car was en- gaged in the defendant's business at the time of the accident, the defendant will be entitled to binding instructions, notwith- standing the fact that he did not file an affidavit of defense; the failure to file the affidavit operated as an admission under section 13 of the Practice Act of May 14, 1915, P. L. 483, but, owing to the insuffici-
tiff's statement; facts must be averred suf- ficient to show that a duty required by law has been breached or neglected by the de- fendant, and plainly to indicate the casual connection between this breach or neglect and the injury complained of. -DIEHL V. STEWARTSTOWN RAILROAD CO., 49
Plaintiff's statement-Want of neces- sary particulars-Striking off.
A plaintiff's statement in an action to re- cover the cost of erecting a dwelling house, in which it is shown that the dwelling was erected under a contract, and there are items of claim for work and materials furnished in
addition to, or more costly than those re- quired by the contract, in accordance with modifications of the contract, full particu-
lars of the materials and labor so furnished must be set out.
Such a statement, where the additional materials and labor furnished were set out as "a porch was constructed," "the plumbing was changed," "a refrigerator was installed," etc., with the charges made for each item, was stricken off because it did not set forth the necessary particulars. -DOLL V. STAUFFER, 85
Plaintiff's statement-Motion to strike off-Redundant and verbose averments Electric wires-Necessity to inspect
electric wires-Averment of ownership ant paid for all the goods, less two per cent of wire.
A plaintiff's statement which states the facts which the defendant is required to meet at the trial in such language as can be un- derstood and answered by an affirmance or denial of the negligence, the results, and the damage described, will not be stricken off even though the averments be verbose and redundant.
Electricity is a dangerous agency, and those employing it are required to exercise the highest practical degree of care.
The duty to inspect electric wires is clear, and failure to perform it is negligence.
of the specified price; that nine car loads were not paid within ten days, without in- dicating specifically which nine car loads were not so paid; and claiming the two per cent deducted from the price of the nine car loads, is uncertain and will be stricken off.
A plaintiff's statement, the body of which is in typewriting, with interlineations in ink, without any explanation whether the inter- lineations were made before or after the statement was signed and verified, is defec-
-PENN PAPER STOCK CO. V. YORK PAPER MAN'F'G. CO., 177
Practice-Trespass-Plaintiff's state-
Where a plaintiff's statement averred that ment-Affidavit of defense not required
the plaintiff was injured by coming in con- tact with a wire dangling from the defend- ant's pole, the court refused to strike off the statement because it was not averred that said wire was the defendant's wire, or that
-Motion to strike off, when too late, service of copy.
-PRENTZEL, TRUSTEE V. SNYDER, 25
Intoxicating liquors-Plaintiff's state- it was attached to said pole with the knowl-ment-Contracts-Illegal contract—Vio- edge and consent of the defendant, or that lation of liquor laws-Statement of defendant knew that said wire dangled from claim-Practice, C. P.-Affidavit of de- its pole, negligence in maintenance and in fence-Merits and law-Statement of
failure to inspect having been charged. -MARTIN V. EDISON LIGHT AND POWER CO., 118
Plaintiff's statements-Need not con- tain matters of defense-Affidavit raising question of law-Practice Act of May 14, 1915, P. L. 483.
Where a rule to strike off a plaintiff's statement was discharged and the time for filing an affidavit of defense extended fifteen days to file an affidavit of defense, and with-
-FRITZ ET UX. V. McGEEHAN, 45
Plaintiff's statement - Practice - De- fective statement on appeal from magis trate-Amendment-Rule to arbitrate- Acts of June 16, 1836, P. L. 719, May 14, 1815, P. L. 483, and April 10, 1921, P. L. 144.
-CROYLE V. GROFF & WOLF CO., 95
Practice, C. P.-Plaintiff's statement
in that time the defendant filed an affidavit-Goods sold and delivered-Book ac- raising a point of law, a judgment subse- count without dates or descriptive items -Affidavit of defense in lieu of demur-
quently entered for want of an affidavit of defense is improperly entered and should be stricken off.
It is not necessary for a statement to set
-DOMBROWSKI V. WALCZLGLOWA, 122
Pleadings-Plaintiff's statement—Gen- forth whether the plaintiff is a foreign or do- eral averments of negligece — Striking
mestic corporation or that one of the defend- dants is a married woman and the wife of the other defendant or whether or not she signed the note on which suit is brought as surety, nor is it necessary for the plaintiff to state that the note was protested in order to hold the makers. These are all matters of
off statement.
-STICK V. GROVE, 164
under the authority contained in Section 21 fense set up thereto; and where the defense of the Practice Act of 1915, P. L. 483. -BRUBAKER V. KOLLER, 9
includes alleged contacts and arrangements between the parties, followed by a series of
ness relations and financial obligations from
Pleadings Foreign judgments-Pre-transactions, which resulted in changed busi- sumption of residence-Service of pro- those set forth in the plaintiff's statement, cess-Act of April 14, 1851.
In an action upon the judgment or a court of a sister state, it is not necessary to aver in the statement of claim that defendant did in fact reside within the jurisdiction of the court in which the judgment was rendered, where the transcript of the sheriff's return of the summons shows service by leaving a copy at the defendant's residence. This raises a presumption that defendant was a resident within the jurisdiction of the court at the time suit was instituted and the pro- cess served.
some latitude must be allowed in setting the same forth in pleadings.
Paragraphs which set forth lump charges and claims for damages, without properly itemizing the same or giving in sufficient de- tail the facts upon which they are based, are defective; and an affidavit of defense con- taining such paragraphs in a counter-claim was stricken off.
-REICHARD V. PARIS, 125
Pleading and practice-Administrator -Action in trespass-Negligence-Act
Act of April 14, 1851, P. L. 612, considered. of April 26, 1855, P. L. 309, and Fiduci-
Pleading and practice-Rule for more specific averments of facts-Judgment of non pros for failure to file a more spe- cific plaintiff's statement.
Where, after a motion to strike off a plain- tiff's statement, the court held the statement sufficient, and indicated that if the defendant should deem the statement not sufficiently explicit, application may be made for more specific averment of facts, and defendant made such application, and the plaintiff in answer to a rule granted on the defendant's application gave the information requested, the defendant is not entitled to judgment of non pros on the ground that the plaintiff failed to file a more specific statement in ac- cordance with the rule granted. -HERSHEY V. YORK WATER CO., NO. 2, 121
Pleading Allegation defined-Mater- ial allegations Answering paragraph in affidavit of defense-Lump charges and claims for damages-Striking off affida- vit of defense.
An allegation, in the technical sense in which the word is used in the statute pre- scribing the form of pleadings, is the asser- tion, declaration or statement of a party to an action made in a pleading setting out what he expects to prove.
The statute, however, limits the pleader to the making of "material allegations," which, in an affidavit of defense, should consist only of such pertinent and material facts as may
constitute a proper defense in answer to the corresponding paragraph of the plaintiff's statement. Such an answering paragraph may, therefore, include many facts, and may
aries Act of 1917, P. L. 504, Section 35.
An administrator cannot maintain an ac-
tion in trespass for damages for the death of his decedent by the alleged negligence of de-
fendant. The Act of April 26, 1855, P. L. 309, is not disturbed by the 35th Section of the Fiduciaries Act of 1917, P. L. 504. -CONROY V. WEISBROD, 136
Pleadings-Plaintiff's statement-Gen- eral averments of negligence-Striking off statement.
In an action of trespass founded on negli- gence, the plaintiff's statement should in- form the defendant just what acts or omis- sions the plaintiff charges him with, so that, if the allegations of the acts or omissions are not true, the defendant can deny or explain them by such evidence as he can produce.
The Practice Act of 1915, P. L. 483, re-
quires that the plaintiff must give by his statement to the defendant fair notice of all
he expects to prove agianst him.
A plaintiff's statement in which the neglig- ence charged was averred in general terms, without particulars, was stricken off. -STICK V. GROVE, 164
Mechanic's lien--Pleading-Rescission of sale-Set-off-Affidavit of defense.
-BLAEBAUM V. JULIUS, 149
Guarantors, liability to one another for contribution Position at trial conclu- sive-Evidence to vary a written instru- ment-Review of refusal to strike off verbose pleadings.
-KAUFFMAN'S APPEAL, 161
be more or less extended, according to the Affidavit of defense - Pleading and nature of the plaintiff's claim and of the de-practice-Replevin-Statement of claim
« ПредишнаНапред » |