Birdsall v. Wilbur

Supreme Court of Pennsylvania

Birdsall v. Wilbur

196 A. 862, 329 Pa. 69, 1938 Pa. LEXIS 473

CourtSupreme Court of Pennsylvania

DecidedJanuary 10, 1938

DocketAppeal, 24

StatusPublished

Cited by5 cases

This text of 196 A. 862 (Birdsall v. Wilbur) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Birdsall v. Wilbur, 196 A. 862, 329 Pa. 69, 1938 Pa. LEXIS 473 (Pa. 1938).

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Opinion

Per Curiam,

The question propounded in this appeal, whether, in pleading the statute of limitations in the affidavit of defense, defendant’s failure to caption the new matter as prescribed, and to move plaintiff to reply specifically to it, prevents the statute from being raised in the defense at the trial, has been fully answered by Isaac et al. v. Donegal and Conoy Mutual Fire Ins. Co., 301 Pa. 351, at 356. The statute of limitations must be specifically pleaded. It is not a matter of which the court will take judicial notice from the facts contained in the plaintiff’s statement of claim: Barclay v. Barclay, 206 Pa. 307; Carter v. Vandegrift, 74 Pa. Super. Ct. 26. But, defendant having pleaded the statute of limitations as a defense and set it up at trial, the burden was then on plaintiff to raise the issue of its applicability: Reading Co. v. E. J. Keller Co., Inc., 100 Pa. Super. Ct. 579.

Judgment affirmed.

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Per Curiam,

The question propounded in this appeal, whether, in pleading the statute of limitations in the affidavit of defense, defendant’s failure to caption the new matter as prescribed, and to move plaintiff to reply specifically to it, prevents the statute from being raised in the defense at the trial, has been fully answered by Isaac et al. v. Donegal and Conoy Mutual Fire Ins. Co., 301 Pa. 351, at 356. The statute of limitations must be specifically pleaded. It is not a matter of which the court will take judicial notice from the facts contained in the plaintiff’s statement of claim: Barclay v. Barclay, 206 Pa. 307; Carter v. Vandegrift, 74 Pa. Super. Ct. 26. But, defendant having pleaded the statute of limitations as a defense and set it up at trial, the burden was then on plaintiff to raise the issue of its applicability: Reading Co. v. E. J. Keller Co., Inc., 100 Pa. Super. Ct. 579.

Judgment affirmed.

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196 A. 862, 329 Pa. 69, 1938 Pa. LEXIS 473, Counsel Stack Legal Research, https://law.counselstack.com/opinion/birdsall-v-wilbur-pa-1938.

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