Longstreth v. Gray
| Decision Date | 03 March 1910 |
| Docket Number | 262-1909 |
| Citation | 42 Pa.Super. 173 |
| Parties | Longstreth v. Gray, Appellant |
| Court | Pennsylvania Superior Court |
Argued December 17, 1909
Appeal by defendant, from order of C.P. No. 3, Phila. Co.-1909, No 676, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Charles A Longstreth v. John Gordon Gray.
Assumpsit on a promissory note.
Rule for judgment for want of a sufficient affidavit of defense.
The facts are stated in the opinion of the Superior Court.
Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.
Affirmed.
Edmund W. Kirby, with him Robert J. Byron, for appellant. -- Under the procedure Act of May 25, 1887, P. L. 271, the declaration is required to be not only concise, but a precise statement of the plaintiff's demand, exhibiting with accuracy and completeness the ground on which recovery is sought Clark v. Lindsay, 7 Pa.Super. 43; Monsarratt v. Trust Co., 14 Pa.Super. 541; Fritz v. Hathaway, 135 Pa. 274; Bank v. Ellis, 161 Pa. 241.
Thomas S. Williams, with him Joseph T. Bunting, for appellee. -- The John Gordon Gray named in plaintiff's statement is prima facie the John Gordon Gray who was sued: McConeghy v. Kirk, 68 Pa. 200; Hamsher v. Kline, 57 Pa. 397; Wallace v. McElevy, 2 Grant, 44; Burns v. Hyatt, 1 Clark, 323; Mink v. Shaffer, 124 Pa. 280; Shaw v. Merrill, 16 Pa. Dist. 708.
Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
This appeal is without merit. The action was assumpsit against John Gordon Gray. The statement averred, with precision as to details of time and place, that John Gordon Gray made and delivered to Charles A. Longstreth, the plaintiff, a promissory note, a copy of which is set forth at length; that certain payments had been made upon the note; and that a balance, specifying it, was justly due and remained unpaid, " although demand has been made by the plaintiff upon the said John Gordon Gray for the payment of the same since the same became due."
The statement in the defendant's affidavit, that he was advised by counsel that the statement of claim did not set forth any cause of action against him and therefore it was not necessary for him to make any defense to the averments of facts set forth in the statement, contained no intimation that the statement was defective in not averring that the defendant is the ...
To continue reading
Request your trial