Horter v. Cohen

Superior Court of Pennsylvania

Horter v. Cohen

90 Pa. Super. 174, 1927 Pa. Super. LEXIS 36

CourtSuperior Court of Pennsylvania

DecidedDecember 14, 1926

DocketAppeal 319

StatusPublished

Cited by4 cases

This text of 90 Pa. Super. 174 (Horter v. Cohen) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Horter v. Cohen, 90 Pa. Super. 174, 1927 Pa. Super. LEXIS 36 (Pa. Ct. App. 1926).

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Opinion

Opinion by

Tkexler, J.,

The court below refused to open the judgment which had been entered in this case for want of an affidavit of defense. The reasons that led the court to take this action were that there was an unreasonable delay in taking the rule' and that there was no meritorious defense presented. After the matter was decided and an appeal to this court had been taken, it was discovered that plaintiff’s statement had not been sworn to. Although tbis question was not raised in the court below, we are constrained to reverse the case, for the error is fundamental. Failure to swear to the statement is in direct conflict with the Act of May 14, 1915, P. L. 483.

Section 9 of the said act provides that the statement “shall be sworn to by the plaintiff or some person having knowledge of the facts.” If not sworn to, its character is not such as is contemplated by the act; instead of its being a document verified by the sanctity of the oath, it is a mere narration, and amounts to nothing. The absence of verification is fatal and it was so held by the Supreme Court in Hutchinson v. Woodwell, 107 Pa. 509, 520. The rule that there must be a valid statement to entitle the plaintiff to judgment has not been changed by the Act of May 14,1915, P. L. 483, neither does the filing of an affidavit of defense constitute a waiver of defendant’s right subsequently to rely upon the deficiency of plaintiff’s statement (Parry v. Bank, 270 Pa. 556) and where *176 the defect in the statement is such as to entirely deprive it of its legal effect, it should not be allowed to support a judgment, when proper application is made to set it aside. Where the affidavit was made by some one not shown to be cognizant with the facts, it was decided that the case was not in a condition to demand any affidavit of defense. Hutchinson v. Woodwell, supra. In that case, as in this, the objection to the sufficiency of the affidavit of claim was not raised in the court below, but it was considered and passed upon by the Supreme Court. In Johnson v. Smith, 158 Pa. 568, the rule of court required plaintiff’s statement to be supported by an affidavit. It was sworn to by an agent and it did not appear that he was acquainted with the facts. It was held to have been error to enter judgment for want of a sufficient affidavit of defense. That the plaintiff did not bring themselves within the rule of court and therefore, were not entitled to judgment.

In the present case, the prayer of the defendant is that the court open the judgment. He does not ask to have it stricken from the record. The 21st section of the Act of 1915 may furnish the means whereby matters may be straightened, so that the suit may be properly disposed of.

The order of the lower court is reversed and the record is remitted with the direction that the rule to open the judgment be made absolute.

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Opinion by

Tkexler, J.,

The court below refused to open the judgment which had been entered in this case for want of an affidavit of defense. The reasons that led the court to take this action were that there was an unreasonable delay in taking the rule' and that there was no meritorious defense presented. After the matter was decided and an appeal to this court had been taken, it was discovered that plaintiff’s statement had not been sworn to. Although tbis question was not raised in the court below, we are constrained to reverse the case, for the error is fundamental. Failure to swear to the statement is in direct conflict with the Act of May 14, 1915, P. L. 483.

Section 9 of the said act provides that the statement “shall be sworn to by the plaintiff or some person having knowledge of the facts.” If not sworn to, its character is not such as is contemplated by the act; instead of its being a document verified by the sanctity of the oath, it is a mere narration, and amounts to nothing. The absence of verification is fatal and it was so held by the Supreme Court in Hutchinson v. Woodwell, 107 Pa. 509, 520. The rule that there must be a valid statement to entitle the plaintiff to judgment has not been changed by the Act of May 14,1915, P. L. 483, neither does the filing of an affidavit of defense constitute a waiver of defendant’s right subsequently to rely upon the deficiency of plaintiff’s statement (Parry v. Bank, 270 Pa. 556) and where *176 the defect in the statement is such as to entirely deprive it of its legal effect, it should not be allowed to support a judgment, when proper application is made to set it aside. Where the affidavit was made by some one not shown to be cognizant with the facts, it was decided that the case was not in a condition to demand any affidavit of defense. Hutchinson v. Woodwell, supra. In that case, as in this, the objection to the sufficiency of the affidavit of claim was not raised in the court below, but it was considered and passed upon by the Supreme Court. In Johnson v. Smith, 158 Pa. 568, the rule of court required plaintiff’s statement to be supported by an affidavit. It was sworn to by an agent and it did not appear that he was acquainted with the facts. It was held to have been error to enter judgment for want of a sufficient affidavit of defense. That the plaintiff did not bring themselves within the rule of court and therefore, were not entitled to judgment.

In the present case, the prayer of the defendant is that the court open the judgment. He does not ask to have it stricken from the record. The 21st section of the Act of 1915 may furnish the means whereby matters may be straightened, so that the suit may be properly disposed of.

The order of the lower court is reversed and the record is remitted with the direction that the rule to open the judgment be made absolute.

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90 Pa. Super. 174, 1927 Pa. Super. LEXIS 36, Counsel Stack Legal Research, https://law.counselstack.com/opinion/horter-v-cohen-pasuperct-1926.

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