Maisch v. Order of Americus

Supreme Court of Pennsylvania

Maisch v. Order of Americus

34 Pa. Super. 436, 1907 Pa. Super. LEXIS 153

CourtSupreme Court of Pennsylvania

DecidedOctober 7, 1907

DocketAppeal, No. 192

StatusPublished

Cited by3 cases

This text of 34 Pa. Super. 436 (Maisch v. Order of Americus) 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

Maisch v. Order of Americus, 34 Pa. Super. 436, 1907 Pa. Super. LEXIS 153 (Pa. 1907).

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Opinion

Opinion by

Orlady, J.,

This action of assumpsit was originally brought August 31, 1903, against the defendant as a corporation, and service of the summons was made on E. E. Robbins as the president.

On March 28, 1906, upon affidavit of the plaintiff that a mistake had been made in the name of the defendant by describing it as a corporation, the court permitted the statement of claim to be amended by adding after the name “ Order of Americus,” the following: “ An unincorporated, fraternal, beneficial society duly organized under the laws of the commonwealth of Pennsylvania, and composed of Lee W. Squire, Edwin E. Robbins and others.”

No alias summons was issued, and when the cause was tried on October 16, 1906, the defendant presented a point for charges as follows : “ That under the pleadings in this case no verdict can be had against the defendant, because the remedy, if any, is by a bill in equity, and not by an action of assumpsit,” which was affirmed by the court, and a verdict directed for the defendant under authority of Fletcher v. Gawanese Tribe, 9 Pa. Superior Ct. 393. The decision of this court in . that case controls us in this one and the judgment is affirmed.

Henderson, J., dissents.

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Opinion by

Orlady, J.,

This action of assumpsit was originally brought August 31, 1903, against the defendant as a corporation, and service of the summons was made on E. E. Robbins as the president.

On March 28, 1906, upon affidavit of the plaintiff that a mistake had been made in the name of the defendant by describing it as a corporation, the court permitted the statement of claim to be amended by adding after the name “ Order of Americus,” the following: “ An unincorporated, fraternal, beneficial society duly organized under the laws of the commonwealth of Pennsylvania, and composed of Lee W. Squire, Edwin E. Robbins and others.”

No alias summons was issued, and when the cause was tried on October 16, 1906, the defendant presented a point for charges as follows : “ That under the pleadings in this case no verdict can be had against the defendant, because the remedy, if any, is by a bill in equity, and not by an action of assumpsit,” which was affirmed by the court, and a verdict directed for the defendant under authority of Fletcher v. Gawanese Tribe, 9 Pa. Superior Ct. 393. The decision of this court in . that case controls us in this one and the judgment is affirmed.

Henderson, J., dissents.

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Bluebook (online)

34 Pa. Super. 436, 1907 Pa. Super. LEXIS 153, Counsel Stack Legal Research, https://law.counselstack.com/opinion/maisch-v-order-of-americus-pa-1907.

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