239 Pa. 577 | Pa. | 1913
Opinion by
This is an action of assumpsit brought June 27, 1912, to recover a balance alleged to be due the plaintiffs as fiscal agents of the defendant company in negotiating the sale of certain collateral trust notes made and executed by the defendant. The plaintiffs filed a statement of their claim which covers thirty-seven printed pages and embracing a copy of the contract which covers less than three pages. The defendant presented a petition to the court below alleging that the statement was not concise and within the terms of the act of assembly but contains a mass of averments of a purely evidential character and for this reason praying the court to suppress it. A rule was issued to show cause why the prayer of the petition should not be granted which the court subsequently made absolute. The learned court also refused to grant judgment for the plaintiffs for want of a sufficient affidavit of defense. The action of the court in each instance is assigned for error.
We cannot inquire into the merits of the case, either on the rule to suppress the statement or the rule for judgment for want of a sufficient affidavit of defense.
If it be conceded that the statement of claim was justly open to the objection raised by the. defendant company, it clearly waived its right to insist upon the objection by its laches. As the record disclosed, the rule to suppress the statement was not taken until after the defendant had filed an affidavit of defense to the merits of the claim and a rule had been taken for want of a sufficient affidavit of defense. One who seeks to avail himself of technical objections to pleadings must do so at the earliest opportunity. He cannot be permitted by his pleadings to raise an issue on the merits of the case, and thereafter to attack the sufficiency of his opponent’s pleadings. He may waive the irregularities and formalities in the pleadings, and he does so if, without objection, he proceeds to invite the judgment of the court on the merits of the case. It is well settled that a .demurrer and .affidavit, of defense cannot be filed to a statement of claim at the same time. The filing of the affidavit to the. merits is an abandonment of the demurrer. .A. like.rule.prevails here.. The filing of the affidavit of defense to the plaintiffs’ statement of claim
Whether the statement of claim is open to the objection raised by the defendant company, or whether it has adopted the proper procedure to attack the statement we are not called upon to decide. It may be well to suggest, however, that the Practice Act of 1887 provides that the plaintiff’s declaration “shall consist of a concise statement of the demand.” The statement should aver clearly and concisely such facts as if not successfully controverted would entitle the plaintiff to a verdict. It should not include immaterial matter or the evidence by which the claim is to be sustained. It should be as comprehensive but as brief as the averments of the material facts will permit. As has been well said, the statement should not only be concise but precise, exhibiting with accuracy and completeness the ground on which recovery is sought. These requirements in a statement are clearly contemplated by the practice act, and we have no doubt that the court has a right, in a proper proceeding and at the proper time, to enforce a compliance with them.
While the rule for judgment for want of a sufficient
The order of the court below in making absolute the rule to suppress the statement is reversed, as is also the order discharging the rule for judgment for want of a sufficient affidavit of defense, and a procedendo is awarded.