Fleisher v. Blackburn

15 Pa. Super. 289, 1900 Pa. Super. LEXIS 341

• Court: Superior Court of Pennsylvania
• Decided: November 19, 1900
• Docket: Appeal, No. 210
• Status: Published

Opinion

Per Curiam,

The affidavit of defense raised a question as to the cause of action alleged in the statement of claim, but the defendant’s counsel frankly admitted at bar that the question was authoritatively ruled against his client by our recent decision in Building Association v. Webb, 12 Pa. Superior Ct. 545, a case not reported at the time the affidavit of defense was filed. Therefore, the only question requiring particular notice is as to the sufficiency of the averment of set-off. The general rule is that a set-off alleged in an affidavit of defense must not only be stated with exactness as to source, character and amount, but must also be alleged to have been in existence and owned by the defendant at the institution of the action. Where the affidavit does not come up to these requirements and the court enters judgment, this court will not reverse. It is discretionary with the court below to permit a supplemental affidavit to be filed. It is not bound to grant such permission even when it is asked, much less is it its duty to grant it as a matter of course. Viewing the averment of set-off as a whole, we think the court committed no error in holding that it was insufficient to prevent judgment.

Judgment affirmed.