Jester v. Jester

Delaware County Court of Common Pleas

Jester v. Jester

6 Pa. D. & C. 318, 1924 Pa. Dist. & Cnty. Dec. LEXIS 360

CourtPennsylvania Court of Common Pleas, Delaware County

DecidedNovember 17, 1924

DocketNo. 986

StatusPublished

This text of 6 Pa. D. & C. 318 (Jester v. Jester) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Delaware County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Jester v. Jester, 6 Pa. D. & C. 318, 1924 Pa. Dist. & Cnty. Dec. LEXIS 360 (Pa. Super. Ct. 1924).

Pincite

Opinion

Broomall, J.,

After a subpoena issued on April 23, 1924, and a return of non est inventus, an alias subpoena issued on June 4, 1924, and a return of service, a general appearance for respondent on July 28, 1924, a call for a bill of particulars by the respondent on July 28, 1924, a bill of particulars filed by libellant on Aug. 8, 1924, an application by libellant for counsel fees, costs and expenses, then the respondent, on Aug. 27, 1924, petitions the court for a dismissal of the libel because the affidavit attached to the libel does not comply with the act of assembly, in that it does not state that the facts contained in the petition or libel are true.

The affidavit to the petition and libel states “that the statements contained in the above libel are true.”

The Statute of March 13, 1815, P. L. 150, prescribes that the affidavit shall be “that the facts contained in said petition or libel are true.”

We have been referred to no authority requiring the affidavit to be in the precise words of the statute. Therefore, if the affidavit contains the statutory requirements in substance, it is sufficient. To say that a statement is true is the same as saying that the fact is true. Indeed, the former is better English. The latter is open to the criticisms that to say a fact is true is a tautological expression. We are of opinion that this affidavit substantially complies with the statute.

Moreover, this motion is too late after the respondent has required the libellant to file a bill of particulars. We note, too, that the affidavit to the bill of particulars is in the form that the facts contained therein are true.

Moreover, the respondent filed a general answer to the libel on Sept. 10, 1924. This is a waiver of his motion to dismiss.

For these reasons, the respondent’s petition to dismiss libel is refused.

From A. B. Geary, Chester, Fa.

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Broomall, J.,

After a subpoena issued on April 23, 1924, and a return of non est inventus, an alias subpoena issued on June 4, 1924, and a return of service, a general appearance for respondent on July 28, 1924, a call for a bill of particulars by the respondent on July 28, 1924, a bill of particulars filed by libellant on Aug. 8, 1924, an application by libellant for counsel fees, costs and expenses, then the respondent, on Aug. 27, 1924, petitions the court for a dismissal of the libel because the affidavit attached to the libel does not comply with the act of assembly, in that it does not state that the facts contained in the petition or libel are true.

The affidavit to the petition and libel states “that the statements contained in the above libel are true.”

The Statute of March 13, 1815, P. L. 150, prescribes that the affidavit shall be “that the facts contained in said petition or libel are true.”

We have been referred to no authority requiring the affidavit to be in the precise words of the statute. Therefore, if the affidavit contains the statutory requirements in substance, it is sufficient. To say that a statement is true is the same as saying that the fact is true. Indeed, the former is better English. The latter is open to the criticisms that to say a fact is true is a tautological expression. We are of opinion that this affidavit substantially complies with the statute.

Moreover, this motion is too late after the respondent has required the libellant to file a bill of particulars. We note, too, that the affidavit to the bill of particulars is in the form that the facts contained therein are true.

Moreover, the respondent filed a general answer to the libel on Sept. 10, 1924. This is a waiver of his motion to dismiss.

For these reasons, the respondent’s petition to dismiss libel is refused.

From A. B. Geary, Chester, Fa.

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Bluebook (online)

6 Pa. D. & C. 318, 1924 Pa. Dist. & Cnty. Dec. LEXIS 360, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jester-v-jester-pactcompldelawa-1924.