Commonwealth v. Magee, 24 Pa. Super. 329

Commonwealth v. Magee

24 Pa. Super. 329 | Pa. Super. Ct. | 1904

Opinion by

Orlady, J.,

This action is founded on an award of the orphans’ court and *331is against the principal and surety in a bond conditioned that James E. Magee should faithfully execute the trust and properly appropriate the proceeds of the sale of certain real estate of Margaret Dalton, deceased, according to the trust and decree of the court and according to law. The appeal is from the judgment entered for want of a sufficient affidavit of defense, which judgment is resisted on the ground that the statement does not aver that the award to the plaintiff was out of the proceeds of the sale of the real estate mentioned in the bond, and, further that the account of the administrator joined the rents received from the real estate with the proceeds of its sale. To entitle a plaintiff to judgment for want of an affidavit or a sufficient affidavit of defense all the essential ingredients of a complete cause of action must affirmatively appear in the statement and the exhibits which are made part thereof; the statement of the demand must be self-sustaining; that is to say, it must set forth in clear and concise terms a good cause of action, by which is meant such averments of fact as, if not controverted, would entitle him to a verdict for the amount of his claim : Gould v. Gage, 118 Pa. 559; Peale v. Addicts, 174 Pa. 543; Acme Mfg. Co. v. Reed, 181 Pa. 382.

To sustain the contention of the appellee we must infer certain facts which do not clearly appear in the opinion of the auditing judge. A calculation is necessary to ascertain the difference between the amount realized from the real estate and that for distribution under the account filed, and the manner of the application of this difference does not appear in the record. The sale of the real estate was for the payment of debts, but the application of the personal estate fund and the precedence of the claims allowed by the administrator over the one in this suit is not explained. The liability of this surety is measured by the terms of the bond, and the statement is not sufficiently clear and definite to warrant a summary judgment. Judgment reversed with a procedendo.