Marlowe & Iwaya Co. v. Lehigh Star Bedding Co.

Lehigh County Court of Common Pleas

Marlowe & Iwaya Co. v. Lehigh Star Bedding Co.

12 Pa. D. & C. 180, 1929 Pa. Dist. & Cnty. Dec. LEXIS 295

CourtPennsylvania Court of Common Pleas, Lehigh County

DecidedMarch 11, 1929

DocketNo. 173

StatusPublished

This text of 12 Pa. D. & C. 180 (Marlowe & Iwaya Co. v. Lehigh Star Bedding Co.) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lehigh County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Marlowe & Iwaya Co. v. Lehigh Star Bedding Co., 12 Pa. D. & C. 180, 1929 Pa. Dist. & Cnty. Dec. LEXIS 295 (Pa. Super. Ct. 1929).

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Opinion

Reno, P. J.,

Defendant is a corporation, and its president, in its affidavit of defense, avers that he is president, is familiar with the facts of the case, is authorized to make the affidavit, and that the corporation has a just, true and legal defense to the whole of plaintiff’s claim. Contending that, in addition to these averments, the affiant should have averred that the facts set forth in the affidavit were true, the plaintiff seeks a judgment for want of a sufficient affidavit of defense.

This, then, is an objection to the form of the pleading and should have been and must be stated as a rule to strike off the offensive pleading. The sufficiency of an affidavit, if the alleged defect consists in matter of form (that is, its failure to conform to the requirements of the Practice Act of May 14, 1915, P. L. 483), must be tested by a rule to strike off. A rule for judgment for want of a sufficient affidavit of defense “is in effect like a statutory demurrer to a statement of claim. It admits the facts set forth in the affidavit of defense, but denies their sufficiency in law as a defense to the claim. The rule for judgment does not raise any question of defect of form; for such defects are waived by this method, of attack on the substance of the defense:” Amram, “Pennsylvania Practice Act of 1915,” page 214.

This conclusion will not be construed as an approval of the form of the affidavit of defense. It is unskillfully drawn and, upon proper motion, would have been stricken off.

Now, March 11, 1929, rule for judgment for want of a sufficient affidavit of defense is discharged. From Edwin L. Kohler, Allentown, Pa.

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Reno, P. J.,

Defendant is a corporation, and its president, in its affidavit of defense, avers that he is president, is familiar with the facts of the case, is authorized to make the affidavit, and that the corporation has a just, true and legal defense to the whole of plaintiff’s claim. Contending that, in addition to these averments, the affiant should have averred that the facts set forth in the affidavit were true, the plaintiff seeks a judgment for want of a sufficient affidavit of defense.

This, then, is an objection to the form of the pleading and should have been and must be stated as a rule to strike off the offensive pleading. The sufficiency of an affidavit, if the alleged defect consists in matter of form (that is, its failure to conform to the requirements of the Practice Act of May 14, 1915, P. L. 483), must be tested by a rule to strike off. A rule for judgment for want of a sufficient affidavit of defense “is in effect like a statutory demurrer to a statement of claim. It admits the facts set forth in the affidavit of defense, but denies their sufficiency in law as a defense to the claim. The rule for judgment does not raise any question of defect of form; for such defects are waived by this method, of attack on the substance of the defense:” Amram, “Pennsylvania Practice Act of 1915,” page 214.

This conclusion will not be construed as an approval of the form of the affidavit of defense. It is unskillfully drawn and, upon proper motion, would have been stricken off.

Now, March 11, 1929, rule for judgment for want of a sufficient affidavit of defense is discharged. From Edwin L. Kohler, Allentown, Pa.

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12 Pa. D. & C. 180, 1929 Pa. Dist. & Cnty. Dec. LEXIS 295, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marlowe-iwaya-co-v-lehigh-star-bedding-co-pactcompllehigh-1929.