Weiler v. Weiss

25 Pa. Super. 247, 1904 Pa. Super. LEXIS 50

• Court: Superior Court of Pennsylvania
• Decided: May 19, 1904
• Docket: Appeal, No. 100
• Status: Published

Opinion

Per Curiam,

On July 18,1903, by leave of court, the plaintiffs filed an amended statement. On July 22 the defendant filed a demurrer thereto, in which he alleged, inter alia, that, the amended statement was permitted to be filed without notice to the defendant or his counsel. In the recent case of Comrey v. East Union Township, 202 Pa. 442, it was held that no amendment of the record of a case, which is more than merely formal, should be allowed without notice to the opposite party. But where upon motion to strike off, or other proceeding having that object in view, the opposite party has been heard as to the propriety of the amendment, the fact that he did not have notice of the original application to amend will not, of itself, entitle him to a reversal of the judgment. The action of the court, in such case, in declining to strike off the amendment, will be treated, on appeal, as equivalent to an allowance-of the amendment, and will be judged of accordingly. This being so, the question before us is whether the amendment was allowable under our liberal statutes upon that subject. Upon that question we have no doubt.

But it is argued that the demurrer was special and was filed solely for the purpose of raising the question as to the power of the court to allow the amended statement to be filed, therefore, the court erred in entering judgment on the demurrer for the amount of the plaintiff’s claim. This argument is based on erroneous premises. The second and third causes assigned for demurrer were, that the statement “ allege^, no cause of action against the defendant,” and that it “ is not sufficient in law to maintain plaintiff’s action.” The defendant thereby asked the judgment of the court upon the right of the plaintiff to recover, assuming the facts alleged in the statement to be true and capable of proof. The court was clearly right, therefore, in determining that question, as well as the question as to the permissibility of the amendment. The defendant is not in a position to complain that the court did not confine its decision to the latter question. Nor was there error in holding that the amended statement set up a good cause of action, and in'the manner of stating it was in substantial compliance with the act of 1887.

Granting that the learned judge had discretionary power, upon overruling the demurrer, to permit the defendant to plead issuably to the amended statement, he was not bound to do so, and in the opinion filed by him we think he gives a very good reason for entering final judgment upon the demurrer and ending the litigation. The argument in support of the third and fourth assignments of error is based on the mistaken assumption of counsel that in determining the question raised by the demurrer the court took into consideration facts, developed on the former trial. But the allusion in the opinion as to the former trial were manifestly not made for that purpose, but for the purpose of showing that the defendant, having had one trial on the merits of “ the very issue which would now be tried,” was not in a position to ask, either as of grace or of right, to plead over or to go to a jury trial upon the plea to the original statement, after the decision upon the demurrer was against him.

We add that the record fails to show that such request was made.

All the assignments are overruled and the judgment is affirmed.