« ПредишнаНапред »
sued. For the purposes of the rule, the And now, September 22, 1924, rule to affidavit of cause of action filed by plain- show cause why writ of foreign attachtiff can be treated as if same had been ment should not be dissolved, is made filed in response to the rule. The de- absolute. fendant, in support of the rule, suggests the affidavit of cause of action does not Superior Ct.
of Pa. aver the following jurisdictional facts:
American Chain Co.'s Appeal That the defendant had property in the County of Northampton and State of Pennsylvania, or within the jurisdiction of the court, subject to attachment
Il'orkmen's compensation--Review of at the time the writ issued, or the attach- testimony on appeal-Sufficient evidence ment was made. 2. That the defendant was not in the county or state at the to sustain findings of liability. time the writ issued, or the attachment
The appellate court will review testimony, was made.
on an appeal from a judgment affirming an The plaintiff, having filed no answer order of the Workman's Compensation Board,
with the sole purpose of ascertaining whether to the rule, must rely entirely upon the evidence appears which justifies the findings record presented to the court, as there made, and, if so, whether the law has been can be no amendment now of the affida- properly applied.
Where a workman when about to quit his vit of cause of action filed: Selwen v.
work told his foreman of an injury he had Tappan, et al., 30 Dist. 937. While the sustained while at work and showed an inplaintiff in the affidavit avers that de-jured finger, and where the testimony tended
to show that his work was such that it was fendant is a resident of the City of New quite likely that an injury like that complainHaven, Connecticut, and is beyond the doof might occur, and that he later died
"as the resuult of septicaemia following the jurisdiction of this court, this refers to injury,” notwithstanding evidence that the the date of the affidavit and not to the finger was scratched before he went to work, date of the issuance of the writ. The occurred in the course of decedent's employ
there was sufficient evidence that the injury 44th section of the Pennsylvania Act of ment and that it was the cause of his death. June 13, 1836, relating to foreign attach
Appeal to the Superior Court of Pa., ments, provides: "I writ of attachment No. 10, March Term, 1925, in Lulu M.
may be issued against the real Felker vs. American Chain Company, or personal estate of any person not re- from the judgment of the Court of Comsiding within this Commonwealth, and mon Pleas of York Co., Pa., affirming such writ shall issue, at the time of the is the findings of the Workmen's Compen
suing thereof." From the language of this section of the act, there appears to be Opinion of the court below by Judge two tests, non-residence of the defend-Ross, J., is reported in 38 Y. L. R. 53. ant, and that he is not within the county at the time of the issuance of the pro
Niles & Neff, for appellant. cess of foreign attachment against him.
Robert S. Frey, for appellee. The averment of plaintiff is silent as to whether defendant was not within the Trexler, J., February 27th, 1925.county at the time of the issuance of the This is an appeal from the judgment of writ, which is fatal. Further, the afti- the lower court affirming an order of the davit fails to disclose that the defendant
Workmen's Compensation Board awardwas the owner of proerty within the jurisdiction of the court at the time the writing compensation to the grand-children issued, which is an essential requirement of the decedent, who was in the employ under the Pennsylvania authorities. "Tol of the defendant corporation, the Amersupport a writ of foreign attachmet, it is ican Chain Company. It is our duty to as necessary that defendant have prop-review the 1 stimony with the sole purerty within the jurisdiction and that he be beyond it. Both are essential and pose of ascertaining whether evidence must be averred.” Windlin et al. v. Sax- appears which justifies the findings ony Spinning Co., 261 P. S. 354.
made, and if so, whether the law has
been properly applied ; Thomas v. State C. P. of
Lancaster Co. Workmen's Fund, 280 Pa. 331. The de
Davis v. Gregg cedent was employed by the defendant company on April 9, 1923, and went to work at 6 o'clock that evening. He Landlord and tenant-Duty of landworked during the night until 6:20 the lord to repair Practice Set-off or following morning. At that time the deiedent came and told the foreman that at
counter claim Demurrer NI otion to 4 o'clock in the morning he had rubbed strike off-Notice to be endorsed-Cophis finger open or cut himself. The fin- ies of contracts—Practice cict of Vay ger was wrapped, he took the rag off and showed the hurt to the foreman and told 14, 1915, P. L. 483. him he had a “burnish” feeling in it.
There is no implied covenant on the part
of a lessor that the premises are in good There was some evidence that there had repair and fit for any particular purpose. He been a scratch on the finger before he
is not bound to make repairs unless he has
covenanted to do so. Came to work, but there was also evi- The proper practice is to move to have a
detective set-off or counter claim set up in dence that the employment in which he an ailidavit of defense stricken off, and not was engaged was such that it was quite
to file a replication by way of statutory de
murrer to the counter claim and such statulikely that a scratch or puncture of the tory demurrer should be regarded by the
court as a motion to strike oft. Such motion finger might occur. There was no evi- I will be considered, and in a proper case aldence that the injury to the finger prior the affidavit stricken off which sets up a set
lowed when it asks to have only that part of to the employment was of any extent. In off or counter claim.
The Practice Act of May 14, 1915, P. L. fact the circumstances as narrated sup- 483, Section 5, requires that copies of all port the inference that there was a rub-contracts must be attached to the pleadings,
including a defendant's set-off or bing open and inflammation which was claim. not present when the decedent went to 483, Section 15, requires that where the affi
The Practice Act of May 14, 1915, P. L. work. The conclusion can be reasonably davit of defense sets up a set-off or counter drawn that the accident was sustained in claim against the plaintiff it should be en
dorsed the same as required for a statement, the course of the employment. The pre- and in the exact language of the act, othercise details of the occurrence were not wise it must be stricken off. set out. It was not necessary to show Demurrer to counter claim. the exact nature of the injury, nor just how it occurred; Lario v. l'ennsylvania
Chester A. Diller, for plaintiff. Railroad Company, 277 Pa. 382; Watkins v. Pittsburgh Coal Company, 278
Edwin 11. Gilbert, for defendant.
Hassler, J., January 17, 1925.--PlainThe casual connection between the ac- tiff filed a statement in this case, claiming cident and the death was supported by an amount due from the defendant bethe testimony of a doctor who, when the cause of his failure to do certain things question was asked: “Did he or not die which he was required to do under the as a result of septicaemia following the terms of a written lease of a farm of injury to his finger?" stated: “In my which the plaintiff was the lessor and the opinion he did." This seems positive defendant the lessee. The amount enough to meet the rule as set out in claimed for each failure appears in the Fink v. Sheldon Axle & Spring Com- statement. The defendant filed an affidapany, 270 Pa. 476; McCoy v. Jones and vit of defense, which contained a full and McGlaughlin Steel Compny, 275 Pa. legal defense to many of the items of 422. We think there was sufficient evi- plaintiff's claim, and, in addition, set dence that the injury occurred in the forth a set-off or counter claim as folcourse of decedent's employment and lows: "12. That growing out of this that it was the cause of his death. agreement, and a part of it, was the right The judgment is affirmed.
Tof defendant and his family to take
water from a well at the house; that the or counter claim, and will strike off that pump was in such condition that it could portion of the attidavit of defense if unnot be used, and the landlord (the plain- der the Practice Act it is insufficient. tiff) refused and neglected to repair or Section 5, of the Act of May 14, 1915, have it repaired; that by reason of this, P. L. 183, requires that “every pleadling this defendant and his family was forced (including defendant's set-off or counter to carry water from a spring up a long claim) shall contain a statement in a conhill a hundred yards away, at a cost to the cise and summary form of the material defendant in time to the value of a dol- facts on which the party relies. It must lar a week for one hundred and fifty have attached it all copies of weeks, and that the defendant claims of notes, contracts, etc.” The set-off set up the plaintiff an offset of one hundred and in this affidavit of defense is defective in fifty dollars ($150.00), in time, due to that a copy of the contract (the lease) is the neglect of the plaintiff to repair the not attached to the affidavit of defense, pump and funish water to the defendant as required by the Practice Act. An exand his family
act copy of it is attached to the plaintiff's To this the plaintiff filed a replication, statement, and it does not show that the raising a question of law to so much of defendant and his family were to take the affidavit of defense as set forth a set- water from the well, nor that the plaintiff off or counter claim.
was required to repair the pump and The proper practice is to move to have keep it in repair. There is no implied the set-off or counter claim set up in the covenant on the part of a lessor that the affidavit of defense stricken off. Seaman premises are in good repair and fit for v. Meeley, 1 1. & C. 116; Marcus y any particular purpose.
Trickett on Woods, 00 Pitts. 832. Section 21, of Landlord and Tenant, 68 et seq.; Moore the Act of May 14, 1915, P. I.. 183, pro- v. Weber, 71 l'a. 12). He is not bound to the Act of May 14, 1915, P. I. 183, pro- make repairs, unless he has covenanted vides that the court, upon motion, may strike from the record a pleading which to do so. Wodock v. Robinson, 28 W. does not conform to the provisions of this X. C. 288; Moore v. Ieber, supra; Graact. The Act of May 23, 1923, P. L. ham v. llay: 81 Pa. Superior Ct. 594; 325, amends this, so as to require the mo- | Wood v. Carson, 257 Pa. 522. tion to be made and served on the party Paragraph 12, of the affidavit of defiling the pleading, or his attorney, with-fense setting up the set-off does not, in fifteen days after a copy of such therefore, show cause of action as pleading was served upon the opposite would entitle a defendant to recover unparty or his attorney. A motion to strike der the act of Assembly. off in this case was made and served on
Another reason why it must be stricken the attorney for the defendant within off is, it is not endorsed as required by fifteen days of the date on which the affi- Section 15 of the Act of 1915, supra, davit of defense was filed, though the af-known as the Practice Act. This section fidavit of defense was not served upon provides that, "where the affidavit of dethe attorney for the plaintiff.
fense sets up a set-off or a counter claim The court will regard a statutory de-against the plaintiff, the affidavit of demurrer filed in such a case as this, as a fense shall be endorsed as follows: "To motion to strike off a pleading. Hallo- the within-named plaintiff. You are rewell v. Kimink, 2 D. & C. 145; Sorrick v. quired to file a reply to the within set-off Scheetz, 33 L. L. R. 401. Such motion (or counter claim as the case may be) will be considered and in a proper case within fifteen days from the date hereallowed where it asks to have only that of.'” If the affidavit of defense is not part of the affidavit stricken off which endorsed as required by the act, that is, sets up a set-off or counter claim. Snell if it does not have the endorsement at all, v. Nickles, i D. & C. 487; Middletown or has it even slightly different from Water Co. v. Borough, 3 D. & C. 587. what the act requires, it is defective and We will, therefore, consider the statutory must be stricken off. In Dick v. Forshey, demurrer filed by the plaintiff as a mo- 71 Pa. Superior Ct. 439, it is decided that tion to strike off that portion of the affi- the endorsement on the back of plaintiff's davit of defense which sets up a set-off! statement must be in the exact language
required by the Act of Assembly, and terials was with the owner, it is sufficient that the purpose of the act "was mani- under paragraph 2 of Section 1 of the Act
17 April, 1905, P. L, 172, to set forth the festly to secure uniformity and regular- amount claimed to be due, the kind and ity with respect to the notice necessary, amount of materials furnished, and that the to place the defendant in default, in case time, giving the dates of the first and last
materials were furnished over a period of of his failure to present his defense, and deliveries. it is to be presumed that, in selecting the On a motion to strike off a mechanic's lien very words of the endorsement, import- the claimant is a contractor as averred in
cannot decide the issue whether ance was attached to them according to the statement or a sub-contractor as contheir signification, and that they were
tended by the petitioner. used advisedly.” This applies with equal "
Rule to strike off mechanic's lien. Rule force to an affidavit of defense setting up a set-off or counter claim.
discharged. If an endorsement on the back of a
Emanuel Il'eiss, for defendant and plaintiff's statement which differed slight
rule. ly in its language from that required by the act, did not conform to the require- George J. Gross, contra. ments of the act, and made the statement defective, it follows that where such en
Schaeffer, P. J., January 5, 1925.dorsement is entirely omitted, such plead- This is a motion to strike off a mechaning would not conform to the require-ics' lien for materials furnished. In this ments of the act, and would have to be proceeding the petitioner must rely upon stricken off. See, also, Wagner Bros. Co. defects apparent upon the face of the v. Douglas Bros., 39 L. L. R. 233. It is record; the court cannot, upon the applitrue that, in that case, the pleading was a cation of the owner, strike off lien
regplaintiff's statement, but the act requires ular upon its face for matters dehors the the same endorsement on an affidavit of record: Hiestand v. Keath, 229 Pa. 149. defense which sets up a set-off.
The irregularities here relied upon by the As this afhdavit of defense does not petitioner are as follows: (a) Claimants contain the required endorsement, Para- failed to attach to their claim an affidavit graph 12 of it must be stricken off. signed, and sworn to or affirmed to, by
Rule is made absolute to strike off the claimants or one of them, or by Paragraph 12 of defendant's affidavit of someone cognizant of the facts, to the efdefense.
fect that the facts set forth are true as they are within the affiants' knowledge;
(b) That the claimants in their bill of C. P. of
Berks Co. particulars, marked Exhibit A, fail to
show the dates upon which the materials KASE et al. v. SEGAL
were furnished and the prices charged for each thereof; (c) That on the face
of the claim the claimants clearly indiMechanics' liens- lot f June, 1901, P. cate that the contract was made with one
Howard Sheeder and not with the owner, L. 431–Necessity for affidavit support- Lillian Segal, but claimants have failed ing statement of claim-Practice, C. P.- to give a notice to the said Lillian Segal,
the owner of the premises, of an intenIct 17.1 pril, 1905, P. L. 172, Paragraph tion to file the claim; (d) Claimants have 2 of Section 1-Requisites of statement failed to allege whether or not Howard –
Sheeder had contracted directly with the ---Dates of furnishing material -- Con- owner, Lillian Segal; (e) That the claim
ants do not show whether the lien was tractor and sub-contractor.
claimed for erection and construction, or Neither the Act 4 June, 1901, P. L. 431, nor for alteration and repairs; (f) That in any of its amendments regulating the filing point of fact the claimants are not the of mechanics' liens, specifically requires that the claim he supported by affidavit, although contractor, but a sub-contractor, the said it is good practice to have such claims sworn | Howard Sheeder being the party with
i whom the owner, Lillian Segal, conWhere on the face of a mechanic's lien, it
tracted. appears that the contract to furnish the ma
Neither the Act of 1901 nor any of file the claim had been previously given its amendments specifically require that by claimants to the owner. That, of the claim or statement of demand be sup-course, is the gist of the case. The stateported by athdavit, although it is unde- ment of claiin avers a contract with the niably in general good practice to have defendant (owner) made with her agent, such claims sworn to. In Donaghoo v. Howard Sheeder. Whether not Scott, 12 Pa. 15, it was decided that, un- | Sheeder, as claimed by the defendant, der the Act of 1836, from which the pres- was the contractor for the alteration or ent act was patterned, a statement signed erection of the building, nowhere appears not by the claimant, but by his attorney- upon the statement of claim. The averat-law, was sufficient. And upon the ar- ment there is that he was the defendant's gument of this case, we do not under
agent. We cannot, upon a motion stand that the objection based upon ab-to strike off the lien, determine the sence of an affidavit was pressed. truth of the issue thus raised; that The statement avers that the materials can
be determined only by a jury: were furnished "beginning February 7,
Brennan v. Kennedy, supra.
If the 1924, and continuing until March 13, jury find that the claimants are in 1924,” and in the schedule attached there- | fact sub-contractors, then the lien must to fixes the price of material set forth in fall for want of the natice required to be 14 items as $161.25, and of material set given to the owner of the sub-contracforth in two items as $4.96, or a total of tor's intention to file the lien by the Act $166.21. Paragraph 2 of Section 1 of the of March 24, 1900), P. L. 65, and for Act of April 17, 1905, P. L. 172, pro- failure to set forth in the claim the sevvides that the statement of claim shall set eral dates of delivery and the prices forth : “2. The amount or sum claimed to charged for the several materials delivbe due and the nature or kind of the ered: Burrows v. Carson, supra. But if work done or the kind and amount of the the contract was between the claimant materials furnished, or both and the time and the owner, the lien is good. when the materials were furnished, or the In paragraph 6 of the statement of work done, or both, as the case may be.”|claim it is a verred that the materials were
Here the statement does set forth the furnished in “the construction and erecamount claimed to be due, and the kind | tion of the building" liened. and amount of the materials furnished,
The rule to strike off the mechanics' and avers that they were furnished be- lien is discharged. ginning February 7, 1924, and continuing to March 13, 1924.
That is, the claim gives only the dates of the first and last
C. P. of
York Co. deliveries. It has been decided in a number of cases that such an averment is suf- Petition of York Lodge of Moose ficient in cases where the contract to furnish the materials was with the owner and where, in other words, the claimant is not a sub-contractor. “When the own- Banks—Bonds stolen by assistant casher is also the contractor, he is presumed ier_Notice of fraudulent acquisition. to know whether or not he received the materials contracted for:” Brennan v. The burden of proof is upon the holder of Kennedy, 69 Pa. Superior Ct. 77; Stein- stolen honds, in defending against the claim
of the owner thereof, to show that he acback's Sons v. Keystone Oil Service Co., anired them without knowledge, or notice, 4 D. & C. 559; Wint Co. v. Kurecz et al., 1 other actual or constructive, of the fraud
ulent acquisition of the same. 29 Dist. R. 925. The case of Burrows v.
Where an assistant cashier of a bank reCarson, 244 Pa. 6, relied upon by the pe- ceived bonds, negotiable by delivery, for sale, titioner, is a case in which the claimant and subsequently fraudulently pledged them
with his bank to secure his own debt, and the was a sub-contractor.
bank failed, while the securities were thus The owner, however, asserts that the pledged, the bank was effected with a guilty
knowledge of its officer, and, therefore, was claimant here was a sub-contractor and not an innocent holder of the securities; and that the lien must fall for the additional the owner of the bonds was entitled to have reason that no notice of an intention to the same redelivered to him by the liquid