Графични страници
PDF файл

The plaintiff had, therefore, till September 18th, 1922, to file its answer to the rule, and all proceedings were to stay pending the determination of the rule and even till ten days after notice of the determination of the rule or the entry of security, the notice to be given to the defendant or to his attorney.

If the rule should be in any manner disposed of without the knowledge of the defendant or of his counsel, then notice thereof should be given the defendant or his counsel, and the stay of proceedings continues till ten days after this notice has been given.

rules of court. The court intends to live up to them in the conduct of court affairs, and we must insist on their due observance by the practitioners at the bar.

The face of the record plainly shows that this judgment was entered in violation of the order of court of June 28th, 1922. It is, therefore, irregularly and unauthorizedly entered, and must be stricken off the record, full and ample authority for doing which is plentifully found in the books.

We are not at this time making disposition of the bond filed as security for costs. We cannot, however, refrain from saying that a power of attorney duly authorizing P. B. Linn, Esq., to issue and sign bonds for this company, is of record in the recorder's office in Mis

The order of June 28th, 1922, called upon the plaintiff to furnish security for costs in the sum of five hundred dollars on or before July 17th, 1922, or show cause why judgment of non pros. should cellaneous Book No. 3, page 317, the not be entered for want of such security. On July 17th, 1922, the court, upon motion, extended the time for filing the said bond for fifteen days further, or to August 1st, 1922. On July 28th, 1922, the bond was filed and approved by the


same having been recorded on December 24th, 1903, and that this company has been annually filing its statements in the office of the prothonotary. In this respect the bond is regular and lawful.

And now, to wit, November 25th, 1922, for the reasons herein given, the rule granted on the 23rd day of September, 1922, is made absolute, and the judgment entered on the 14th day of August, 1922, is stricken from the records.

C. P. of

Lehigh Co.

Frey v. Lehigh Valley Shoe

Practice Counter-claim-Waiver of

However, there was, and still is, a rule before the court to be disposed of, and the proceedings in this case are stayed till the determination of this rule. It became a living creature of this court, and it continues to live, although apparently in a stage of coma, till some disposition is made of it. It must be either discharged or made absolute. Nothing has been done with it up to the present time, so it must still be undetermined, and if it is, then the stay placed on the proceedings by the order of June 28th, 1922, is still in force. If this is true, if the stay is still on, how could judgment be taken? Then again, when this bond was ap-counter-claim to plaintiff's claim founded in proved on July 28th, 1922, the plaintiff was bound to give notice of its entry, to the defendant, and this notice would need be given in accordance with our Rule of Court No. 168, which fully provides for the service of it as well as to its form. It is conceded this was not done. Then again, how could judgment be taken?

We do not wish to be regarded as technical. Be it far from us, but we must insist on an observance of our


A claim sounding in tort, arising out of a different transaction, cannot be set up as a


sale of hides and skins, the defendant cannot In an action for commissions as agent for set up as a counter-claim the value of certain leather which plaintiff, while in the employ of defendant, shipped without authority to another, and which proved uncollectible.

Defendant may waive a tort, but only when the goods have been actually converted into money by the wrongdoer, or the circumstances are such as to raise a presumption that he had done so.

Section 14 of Practice Act of 1915 provides for a set-off or counter-claim of any right or claim for which an action of assumpsit would lie.

Affidavit of defense, setting up a Pa. p. 62, Mr. Justice Sharswood, on p. counter-claim. Plaintiff's statutory de- 65, says, "It is evidently true, that in murrer. Defendant's counter-claim many cases the owner of goods wrongstricken from the pleadings.

Gernerd & Boyle, for plaintiff.
Butz & Rupp, for defendant.

fully taken or detained by another, may waive the tort and recover on a count for money had and received in assumpsit. But then there must either be some evidence that goods have been actually Iobst, J., March 3, 1924.--In this case converted into money by the wrongdoer, the plaintiff claims in assumpsit the re- or the circumstances must be such as to covery of the sum of fifteen hundred and raise a presumption that he has done so. ten dollars and forty-four cents ($1510.- *** It is evident that conversion 44), upon an oral contract of agency for or consumption was essential; a mere the sale of certain hides and skins, the detention, or a loss even by negligence property of the defendant. The defend- would not have been enough to charge ant in its affidavit of defense denies the him in this form of action. There must claim of the plaintiff, and in addition to be something from which to presume said denial sets up a counter-claim, as that he assumed the ownership as venfollows: dee." The counter-claim in this case "For further answer to the claim of does not allege that the plaintiff conthe plaintiff herein, and as a counter-verted the leather to his own use or that claim thereto, the defendant avers that it was converted into money. It simply the plaintiff is indebted to it in the sum alleges that he shipped without authority of one hundred and twenty dollars and to some one else the goods of the deninety-eight cents ($120.98), and which fendant while he was in its employ. But is the value of certain leather which the a more serious objection appears in the plaintiff, while in the employ of the de- fact that the matters set forth in the fendant, shipped without authority, to counter-claim do not arise out of the the Force Company, at Philadelphia, Pa., same transaction as set forth in the from whom it could not be collected by plaintiff's cause of action. There is no reason of want of assets. The leather so doubt that an action sounding in tort, shipped consisted of two invoices, viz., arising out of a different transaction, on June 12, 1919, leather invoiced at cannot be set up as a counter-claim to a eight dollars and forty-eight cents plaintiff's cause of action founded in as($8.48), and on June 18, 1919, leather sumpsit. invoiced at one hundred and twelve dollars and fifty cents ($112.50). The defendant claims the said sum of one hundred and twenty dollars and ninety-eight cents ($120.98) as a counter-claim in the event that the plaintiff should recover any sum whatsoever against the defendant upon the cause of action alleged in the statement of claim."

"It is well settled that matters sounding in tort and arising out of a different transaction, cannot be given in evidence as a set off, by a defendant sued in an action ex contractu. Broad and liberal as the decisions have been, they have never authorized the admission of proof of damages arising from a technical tort." Greetzinger v. Latimer, 146 Pa., To defendant's counter-claim, plaintiff page 628. In the case of Roth v. Reiter, files an affidavit of defense for the pur-213 Pa., page 400, Mr. Justice Elkin, on pose of raising questions of law for the page 401, says: "It is conceded in this decision of the court. Section 14 of the case, and it is the law, that in an action Practice Act of May 14, 1915, P. L. 483, on a contract, unliquidated damages 485, provides, inter alia, that "In actions of assumpsit a defendant may set off, or set up by way of counter-claim against the claim of the plaintiff, any right or claim for which an action of assumpsit would lie."

arising out of a tort independent of, and disconnected with, the transaction sued on, cannot be recouped by way of equitable defense." In addition, we think that the set off or counter-claim is not pleaded with sufficient clearness and exIn the case of Satterlee v. Melick, 76 actness, as required under the act. “A

counter-claim should set forth with as nied for that reason: Wadlinger on much precision and exactness as is re- Costs, 66; Voss and Evans v. Sensenig, quired in the statement of a cause of ac-3 Pa. D. R., 633; Applegate v. R. R. Co., tion upon which proceedings are insti- 12 W. N. C., 406; Firestone v. Christ, tuted." Motors Co. v. Hudford P. S. 12 Pa. C. C. 814. Co., 264 Pa. 557. For these reasons, we think that the defendant's set off or counter-claim should be stricken from non-residence. This doesn't conform to the pleadings.

And now, March 3rd, 1924, it is ordered that the defendant's set off or counter-claim be stricken from the pleadings.

[merged small][merged small][merged small][ocr errors]

But aside from that, the only ground alleged is the mere fact of plaintiff's

the local rule on the subject, which requires an affidavit that the party "has a just defense against the whole demand": Court Rule No. 70.

If it be supposed that the averment is supplied by the fact that formal defense has long since been taken by affidavit, the supposition can avail nothing, as it can only serve to emphasize defendant's laches in this particular.

The motion is accordingly denied and the rule to show cause discharged.

Practice-Security for costs Non-C. P. of resident---Court rule.

A non-resident plaintiff will not be required to give security for costs on a petition filed by defendant after action has been at issue nearly three years and gone to a motion for judgment on the pleading, been duly

Lancaster Co.

Gitman Brothers v. Marantz

Foreign judgment-Suit on--1ffidavit

argued by counsel and submitted to the court of defense.

for decision.

Application for security for costs should! In a suit on a judgment obtained in anothbe made without laches and generally be-er state an affidavit of defense is insufficient fore issue joined. which fails to deny that there is such a judgment or to aver want of jurisdiction or payment.

Allegation of the mere fact of plaintiff's non-residence does not conform to Rule No. 70, of the Court of Common Pleas of Lackawanna County, which requires an affidavit that the party "has a just defense against the whole of plaintiff's demand."

Motion for security for costs.

Jessup, Gunster & Rose, for plaintiff.

J. F. Gilroy and T. P. Duffy, for defendant.

[blocks in formation]

John A. Coyle, for rule.
I'm. C. Rehm, contra.

Newcomb, J., March 4, 1924.-The action is assumpsit, and has been pend- Hassler, J., March 20, 1924.-This is ing nearly three years. In the mean an action on a judgment in the Court of time the cause had been put at issue on Common Pleas of Montgomery County, the merits and had gone to a motion for Ohio. A certified copy of the judgment judgment on the pleadings, which had is attached to the plaintiff's statement. been duly argued by counsel and sub- The affidavit of defense which purmitted to the court for decision. At that ports to set forth a just, complete, and stage of the proceeding, namely, on Feb- legal defense to plaintiff's claim, does not ruary 2, this motion on part of defend-deny any of the averments of the stateant was filed asking for an order on ment. The defendant does not deny the plaintiff for security for costs. existence of the judgment nor question Manifestly it is very much belated and the jurisdiction of the court of Montthe relief asked for may properly be de-gomery County, Ohio, to enter it, nor

James J. Logan, for plaintiff and motion.

does he allege that it is paid. It is well Henry Brubaker v. W. C. Koller, No. settled that when a court has jurisdic- 184, April Term, 1923, in the Court of tion to enter a judgment, such judg- Common Pleas of York County, Pa. ment, until reversed, is binding in all Motion allowed. other courts of the same or other states, and is conclusive of all matters covered by it. The only defense that can be made to such a judgment is that it is paid, or that there is no such judgment, or that the court did not have jurisdiction to enter it: Guthrie v. Lowry, 84 Pa. 533; Hunt v. Snyder, 261 Pa. 257; German Trust Co. v. Plotke, 274 Pa. 483. The The first and second paragraphs state affidavit of defense does not set forth the places of residence of the plaintiff any of these defenses. The allegation in and of the defendant.

it that the defendant had no knowledge

John A. Hoober, contra.

Ross, J., February 4th, 1924.-The statement filed in this case consists of seven separable paragraphs.

of the trial of the case, or that judgAt York, Pa., by verbal agreement, on The third paragraph sets forth that, ment had been entered against him, is "At York, Pa., by verbal agreement, on not a defense in the absence of the de- or about, to wit, December 20, 1922, the nial of the court's jurisdiction. If fail- defendant employed the plaintiff to go to ure to give notice of the trial or of the Grove City, Pa., and to work in and entry of judgment, affects the judgment, advantage can only be taken of it in the court where it was entered. It is binding and conclusive in this court for the reason that we are bound to presume that everything was rightly done in the proceedings in the court in which the judgment was entered: Guthrie v. Lowry, 84 Pa. 533. The rule for judgment is made absolute, and judgment entered for the plaintiff for $572.77. Rule made absolute.

[blocks in formation]

Pleading.. Affidavit of defense Counter claim.

The defendant's set off or counter claim is to be regarded as his statement of claim, and can be attacked for want of necessary averments in the same way that an original

statement can be attacked.

An affidavit of defense setting up a count

about a bridge located on or near Hunter's farm, near said city, which bridge the defendant claimed to own and for which work the defendant then and there agreed to pay the plaintiff at the rate of one dollar ($1.00) per hour and expenses, including transportation, board and lodging."

The fourth paragraph states that, "In pursuance of said agreement, at the verbal direction of the defendant, plaintiff on January 1st, 1923, went to said Grove City and was employed in and about the business of the defendant in and about said bridge beginning January 1st, 1923, and continuously to and including January 22, 1923, during which time the plaintiff worked for the defendant a total of 1531⁄2 hours, more fully set out in Exhibit 'A' hereto attached."

The fifth paragraph states that, “In accordance with said employment, the plaintiff laid out and expended seven ($7.00) dollars in carfare and forty-five dollars ($45.00) in board and lodging, which he seeks to recover as expenses under said contract."

The sixth paragraph states: "By reaer claim which is not sufficiently full or pre-son of said premises, the defendant betion of a definite issue will be stricken off came indebted to the plaintiff as follows:

cise to enable a proper reply and the forma

under the authority contained in Section 21 of the Practice Act of 1915, P. L. 483.

Motion to strike off the defendant's supplemental affidavit of defense in

total, $205.50."


The seventh paragraph says that "the defendant paid to the plaintiff on ac

count of said bill the sum of $12.04, and certain labor for the defendant. That

the further sum of $25.00. The balance due the plaintiff is $168.46, which sum is now due with interest thereon from January 22, 1923."

the said plaintiff has neglected and refused to deliver to defendant the said articles or any of them, to wit: Fortytwo and one-half pounds one and oneThe affidavit of defense admits the fourth inch manilla rope, $12.75; one third paragraph of the statement, "ex-hundred fifty pounds manilla rope, one cept that the verbal contract included inch, $9.46; two hundred pounds one and one-fourth inch manilla rope, board and lodging, which is denied." $17.00; and one acetylene burning torch, $105.00; a total of $144.21; also canvas Covering of the value of $50.00; also 40 foot rope of value of $10.00; total, $204.21.

trial of this cause.

The affidavit of defense denies the fourth paragraph, and avers "It was not material what sum the plaintiff paid for boarding, as defendant under the terms of the contract was not liable therefor." "Plaintiff retains the said articles The affidavit of defense denies the sixth paragraph and avers that he, "de- against the right of the defendant therefendant, employed plaintiff to wreck and to and defendant claims from the plainship for him two bridges and especially tiff the cost thereof, to wit, $144.21; all instructed him to wreck what is known of which defendant will prove on the as the Hunter bridge first, and if he had any trouble with Mr. Hunter, on whose land it was located, to at once begin work on the other bridge. Plaintiff had trouble with Mr. Hunter and could not remove said bridge, and instead of at once beginning work on the other bridge, as instructed, loafed at the hotel approximately ten days, and for said period of loafing has now charged defendant $1.00 per hour."

"Defendant has paid $37.04, being the full sum due plaintiff for the period he worked, deducting said period of loafing caused by plaintiff's disobeying defendant's orders and the terms of the contract."

Subsequently defendant filed, by leave of court, the following worded paper: "Supplemental affidavit of defense and counterclaim.


"Affirmed to and subscribed before me this 15th day of October, A. D. 1923. "(Signed)

W. C. Koller. "W. H. Snyder, Prothonotary."

The plaintiff then filed the following worded motion by leave of court:

James J. Logan, his attorney, respect"Henry Brubaker, the plaintiff, by fully moves the court to strike off the supplemental affidavit of defense and counterclaim filed by the defendant and to stay a rule to reply thereto within fifteen days for the following reasons, to wit:

"I. The date and place of delivery of the articles or any of them is not set out.

"2. There is no averment that the plaintiff received the articles mentioned or undertook to be responsible for their safety or return to the defendant; or whether such agreement was verbal or in writing.

"Defendant hereby files supplemental affidavit of defense and counterclaim in the above entitled action and avers as "3. Plaintiff cannot learn from said supplemental affidavit of defense wheth"Reaffirming all contained in his affi- er he is charged with receiving said ardavit of defense and counterclaim, de- ticles from the defendant or from some fendant sets up the following counter-agent of the defendant or when or where claim supplemental and additional to that received or for what purpose to be used. contained in the original counterclaim, "4. Plaintiff cannot learn from said

as follows:

"Defendant purchased and delivered to the plaintiff the following articles of the character and at the prices shown hereinafter to be used by the plaintiff in

affidavit the nature or character or kind of articles he is alleged to have received and whether or not they were new or used articles at the time the alleged delivery was made or whether they are al

« ПредишнаНапред »