Parry v. First Nat. Bank of Lansford

• Decision Date: 26 May 1921
• Docket Number: 73
• Citation: 113 A. 847,270 Pa. 556
• Parties: Parry, Appellant, v. First National Bank of Lansford
• Court: Pennsylvania Supreme Court

113 A. 847

270 Pa. 556

Parry, Appellant, v. First National Bank of Lansford

No. 73

Supreme Court of Pennsylvania

May 26, 1921

Argued March 7, 1921

Appeal, No. 73, Jan. T., 1921, by plaintiff, from order of C.P. Carbon Co., Oct. T., 1919, No. 47, discharging rule for judgment for want of sufficient affidavit of defense in case of William J. Parry v. First National Bank of Lansford. Affirmed.

Assumpsit to recover cash, stocks and bonds deposited. Before BARBER P.J.

Rule for judgment for want of sufficient affidavit of defense.

The opinion of the Supreme Court states the facts.

The court discharged the rule. Plaintiff appealed.

Error assigned, inter alia, above order, quoting it.

The assignments are overruled and the order appealed from is affirmed.

J. O Ulrich, for appellant.

Ben Branch, for appellee.

Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, SADLER and SCHAFFER, JJ.

OPINION

MR. CHIEF JUSTICE MOSCHZISKER:

This is an appeal from an order refusing to enter judgment for want of a sufficient affidavit of defense.

Plaintiff claims $5,757.46, with interest, on six separate allegations of indebtedness, set forth in as many paragraphs of his statement, the first of these being as follows: "3. On December 4, 1918, plaintiff had on deposit, in cash, in the savings department, in the First National Bank of Lansford, Pa., the sum of $1,057.46." The averment just quoted is followed by two other paragraphs, setting forth a demand by plaintiff for the return of the deposit and defendant's refusal. In answer, the affidavit of defense reads: "3. Denied: defendant averring that the only deposit which plaintiff had on December 4, 1918, in defendant's bank, was one of $120.59, which was increased to $180.59 by deposit made by plaintiff on December 7, 1918, and to $184.34 by an interest item entered to plaintiff's credit on January 1, 1919, which total deposit of $184.34 was withdrawn by plaintiff from defendant's bank on January 18, 1919, leaving no further deposit there to plaintiff's credit"; this averment is followed by admissions of the demand and refusal alleged in the statement of claim.

Had defendant contented itself with the "bald denial," indicated by the use of the word "denied," at the beginning of the third paragraph in its affidavit of defense, this would have been insufficient under the Practice Act of 1915, P.L. 483 (Fulton Farmers Assn. v. Bomberger, 262 Pa. 43, 46); but it did not do so. On the contrary, as just shown, immediately after the word "denied," the affidavit of defense enters into a detailed explanation, effectually controverting plaintiff's allegation that he had on deposit with defendant, on the date in question, the sum claimed in the third paragraph of his declaration, and defendant therein further avers that, at time of suit, it had no cash on deposit to credit of plaintiff. So far as the alleged deposit now under discussion is concerned, we entirely agree with the court below that the affidavit of defense is sufficient.

The other paragraphs of the statement of claim and affidavit of defense concern deposits of specific stocks and bonds, alleged to have been made by plaintiff with defendant; as to these, certain of the averments of the affidavit of defense might well be termed "evasive," and others are little more than "bald denials." On this branch of the case, however, the statement of claim is inherently and materially insufficient; it requires no affidavit of defense, and the court below did not err in refusing to enter judgment for plaintiff, on the pleadings.

Before setting forth typical examples of defective averments from the declaration we shall, in view of the Practice Act of 1915, determine the prevailing rules of law which govern the matters before us for decision.

Prior to the recent act of assembly, it was not necessary to question the sufficiency of the statement of claim by demurrer; any material inadequacy might be successfully relied on by defendant on a rule for judgment for want of sufficient affidavit of defense. We said, in Fritz v. Hathaway, 135 Pa. 274, 280, "a judgment for want of a sufficient affidavit of defense is, in effect, a judgment on demurrer, and, like all such judgments, must be selfsustaining on the face of the record"; this is why the statement itself is always open to attack when plaintiff asks for judgment on the pleadings.

To entitle one to judgment for want of a sufficient affidavit of defense, his statement of claim must aver, in clear and concise terms, all facts essential to support the judgment asked; plaintiff's declaration must be such that "judgment may be taken and liquidated upon the data which it furnishes": Barr v. McGary, 131 Pa. 401, 407; Laubach v. Meyers, 147 Pa. 447, 453; Byrne v. Hayden, 124 Pa. 170, 177; Winkleblake v. VanDyke, 161 Pa. 5, 7, 9; Penn Nat. Bk. v. Kopitzsch Soap Co., 161 Pa. 134; 138; Chestnut St. Nat. Bk. v. Ellis, 161 Pa. 241, 244; Capital City M.F. Ins. Co. v. Boggs, 172 Pa. 91, 98; Acme Mfg. Co. v. Reed, 181 Pa. 382, 384; Rosenblatt v. Weinman, 230 Pa. 536, 540. See also Clements v. Dempsey, 7 Pa. Superior Ct. 52; Bill P.S. Co. v. Jermon, 27 Pa.Super. 171, 173, 175; Sullivan County v. Middendorf, 42 W.N.C. 135, 136.

We find nothing in the recent Practice Act, or in the decisions under it, which requires a departure in the present case from the principles just stated: section 21 of this statute (reading as follows, "The court upon motion may strike from the record a pleading which does not conform to the provisions of this act, and may allow an amendment or a new pleading to be filed upon such terms as it may direct") is not intended to provide a new or exclusive remedy, applicable to defective pleadings; it is simply a general enabling provision to be read in connection with the rest of the act. If section 21 is not meant to perform this enabling function, a court would have no right under section 17 to permit a supplemental or amended affidavit of defense, which power has never been, and cannot properly be, questioned.

Here, differing from Fulton Farmers Assn. v. Bomberger, 262 Pa. 43, 46, the court below has not ruled the statement of claim adequate; hence, fatal deficiencies therein will prevent plaintiff from securing judgment for want of a sufficient affidavit of defense. The filing of the affidavit constituted to waiver of defendant's right subsequently to rely upon the inadequacy of plaintiff's averments, when the latter asked for judgment on the pleadings. In Federal S. Co. v. Farrell, 264 Pa. 149, we held the filing of a reply by plaintiff to a counterclaim of defendant did not waive the former's right, upon a motion for judgment on the pleadings, to question the sufficiency of the averments of the counterclaim; and defendant in the present case, so far as the proposition in hand is concerned, is in the same relative position as the plaintiff in the authority under discussion. All of this brings us to the conclusion that, if no affidavit of defense to the averments of the statement of claim which deal with the alleged deposits of stocks and securities was required, then defects in the answering averments are immaterial; and, as before said, so far as the parts in question are concerned, plaintiff's declaration calls for no pleaded reply.

A typical example of plaintiff's defective allegations is found in the sixth paragraph of his declaration, which reads as follows: "On December 4, 1918, defendant had, in its custody for plaintiff, one bond of Wilson & Company for $1,000, bearing interest at the rate of six per cent per annum." This is...