Superior National Bank v. Stadelman, Appeal, No. 136

Read

Notebook

Appeal, No. 136 | Pa. | Mar 20, 1893

Opinion by

Mr. Justice Mitchell,

The affidavit was bad in form, as it consisted merely of a series of short disjointed sentences setting forth no particulars or specific facts, but constituting single and unconnected propositions involving conclusions of law as well as of fact. This is not enough. The affidavit should state the facts specifically, and with sufficient detail to enable the court to say whether or not they amount to a defence: Kaufman v. Iron Co., 105 Pa. 537" court="Pa." date_filed="1884-03-05" href="https://app.midpage.ai/document/kaufman--co-v-cooper-iron-mining-co-6237715?utm_source=webapp" opinion_id="6237715">105 Pa. 537; Noble v. Kreuzkamp, 111 Pa. 68" court="Pa." date_filed="1886-01-04" href="https://app.midpage.ai/document/noble-v-kreuzkamp-6238210?utm_source=webapp" opinion_id="6238210">111 Pa. 68; Sanders v. Sharp, 31 W. N. 374 [153 Pa. 555" court="Pa." date_filed="1893-01-03" href="https://app.midpage.ai/document/sanders-v-sharp-6241350?utm_source=webapp" opinion_id="6241350">153 Pa. 555].

But the affidavit is also insufficient in substance. Defendant is the maker and plaintiff the indorsee and holder of a promissory note. That there was no consideration for the note, that plaintiff had notice of that fact, and that plaintiff paid no money to this defendant for the note, makes no defence at all, *638being entirely consistent with plaintiff’s being a holder for value through a prior indorser, of an accommodation note. The averment that the payee was an officer of the bank and “ had notice of the entire transaction,” without stating what the transaction was, so that the court might judge of it, was a nullity, as were also the further averments that the bank by its officers accepted the note without any liability on the part of the maker, and that the maker was discharged from liability by the plaintiff. It is uncertain whether these are meant to be averments of facts or inferences of law from particular facts not set forth, and such uncertainty is fatal to the sufficiency of the affidavit. The remaining averment that the maker was not to be held liable on the note, was in flat contradiction of the writing, and denied jffie only force the signature to the note could have. Such a defence is inadmissible.

The affidavit being insufficient both in form and in substance, the only remaining question is whether plaintiff waived its right to judgment by entering a rule to plead. It was held in O’Neal v. Rupp, 22 Pa. 395" court="Pa." date_filed="1853-07-01" href="https://app.midpage.ai/document/oneal-v-rupp-6229570?utm_source=webapp" opinion_id="6229570">22 Pa. 395, and Duncan v. Bell, 28 Pa. 516" court="Pa." date_filed="1857-07-01" href="https://app.midpage.ai/document/duncan-v-bell-johnston-jack--co-6230355?utm_source=webapp" opinion_id="6230355">28 Pa. 516, that a plaintiff must move for judgment before he has taken any other steps, subsequent to the affidavit, calculated to mislead the defendant. This was but the adoption by this court of the practice long previously existing in Philadelphia county where affidavits of defence originated, and which has continued down to the present time. Hamer v. Humphrey, 2 Miles, 28" court="None" date_filed="1836-11-19" href="https://app.midpage.ai/document/hamer-v-humphreys-6401822?utm_source=webapp" opinion_id="6401822">2 Miles, 28; Johnston v. Ballentine, 1 W. N. 626. This long established practice it is not desirable, nor is it intended, to disturb. But it is plainly in relief of the defendant, as it tends to excuse him from what is now in the appropriate actions, a statutory requirement. Being for his benefit therefore, he may waive it, and we are of opinion that he has done so here. This point was not brought to the notice of the court below when the rule for judgment was argued, and it is admitted that it is first presented here. It comes too late. There has been no loss or hardship to the defendant but merely a failure to get the benefit of a technical advantage by failing to claim it at the proper time. Though the judgment, in strict law, is irregular in this respect, the appellant has no right now to complain of it.

Judgment affirmed.