232 Pa. 409 | Pa. | 1911
Opinion by
The appellant states two questions involved: “First: Is the New Jersey statute set forth in the plaintiff’s statement of claim enforceable in the state of Pennsylvania under art.' IV, sec. 1, of the constitution of the United States and the acts of Congress passed in pursuance thereof?” and, “Second: Is the New Jersey statute
It is not necessary to determine either of these questions as they are not properly before us. Both of them were decided adversely to the plaintiff by the court below in disposing of the demurrer to the statement of claim, and instead of excepting to that ruling and standing upon the points at issue, the plaintiff amended his statement in such a manner as enabled him to base his claim for recovery upon the law of Pennsylvania rather than upon the New Jersey statute. Had the plaintiff desired to raise the question of the propriety of the ruling of the court below to the effect that the New Jersey statute declared upon by him was contrary to the- public policy of the law of Pennsylvania and would not be enforced in this state, he should have taken an exception so that he might at a proper time assign the ruling for error; since he did not pursue this course, but took advantage of the leave to amend, we must view his statement as though the plaintiff had acquiesced in that ruling and had elected to rely upon the law of this state alone. “If a party, after judgment upon demurrer to pleadings is given against him, under leave of court, amends the pleading demurred to, he acquiesces in the judgment upon the demurrer, and . .will not be permitted to assign it for error in the appellate court:” 2 Cyc. 645. See also Sheppard v. Shelton, 34 Ala. 652; Ellison v. Allen, 8 Fla. 206; particularly is this so when no exception has been taken.
We cannot say that the facts as shown upon the record before us are plain, or that the statement of claim and affidavits of defense raise a pure question of law; nor can we say under the peculiar circumstances of this case that the defendant was obliged to furnish a more specific statement of the facts constituting his defence. Hence, it cannot be held that the court below committed error in discharging the rule for judgment for want of a sufficient affidavit of defense.
The appeal is dismissed at the costs of the appellant, without prejudice, and the record is remitted with a procedendo.