Wolf v. Jacobs

Supreme Court of Pennsylvania

Wolf v. Jacobs

41 A. 27, 187 Pa. 260, 1898 Pa. LEXIS 799

CourtSupreme Court of Pennsylvania

DecidedJuly 21, 1898

DocketAppeal, No. 116

StatusPublished

Cited by5 cases

This text of 41 A. 27 (Wolf v. Jacobs) 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.

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Wolf v. Jacobs, 41 A. 27, 187 Pa. 260, 1898 Pa. LEXIS 799 (Pa. 1898).

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Opinion

Opinion by

Mr. Chief Justice Sterrett,

This suit was brought against the defendant as indorser of the note, a copy of which is set out in the plaintiff’s statement; and the only question presented by the record is whether the learned president of the common pleas erred in holding that the averments contained in the affidavit and supplemental affidavit of defense were sufficient to prevent a summary judgment. We are all clearly of opinion that he did not.

In the supplemental affidavit it is averred “that the notice of protest of the note in suit, alleged in plaintiff’s statement to have been mailed by Henry R. Kraber, notary public, to W. M. Jacobs & Co., was never sent by him to W. M. Jacobs or to W. M. Jacobs & Co., but that all the notices were mailed by said notary to J. P. Wolf, Dayton, Ohio, who held the same about eleven or twelve days when he showed one of the notices to W. M. Jacobs at Lancaster, Pa., which was the only attempt made to notify the defendant of the protest of the note.” Appellant’s contention is that the affidavit is deficient in not averring that the “ affiant is informed, believes and expects to be able to prove’’the facts averred by him. But this is necessary only where the affiant cannot state the facts as of his own knowledge: Newbold v. Pennock, 154 Pa. 593. In Eyre v. Yohe, 67 Pa. 477, it was said, that it is “ not necessary, in a positive affidavit like this, to allege that the defendant expects to be able to prove the defense alleged in the affidavit.” In Moeck v. Littell, 82 Pa. 356, this Court said: “ It is true, the more usual form of an affidavit of defense is that the affiant ‘verily believes ’ the facts which he alleges. Here, instead of belief, he positively avers their actual existence. In its legal effect, this form of an affidavit may be no stronger than one in the usual form; but certainly it is no weaker. It is quite as effective to prevent the taking of judgment.”

[262]*262Other authorities to the same effect might be cited, but it is unnecessary to do so. On principle as well as authority the court below was clearly right in discharging the rule for judgment.

Judgment affirmed.

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Opinion by

Mr. Chief Justice Sterrett,

This suit was brought against the defendant as indorser of the note, a copy of which is set out in the plaintiff’s statement; and the only question presented by the record is whether the learned president of the common pleas erred in holding that the averments contained in the affidavit and supplemental affidavit of defense were sufficient to prevent a summary judgment. We are all clearly of opinion that he did not.

In the supplemental affidavit it is averred “that the notice of protest of the note in suit, alleged in plaintiff’s statement to have been mailed by Henry R. Kraber, notary public, to W. M. Jacobs & Co., was never sent by him to W. M. Jacobs or to W. M. Jacobs & Co., but that all the notices were mailed by said notary to J. P. Wolf, Dayton, Ohio, who held the same about eleven or twelve days when he showed one of the notices to W. M. Jacobs at Lancaster, Pa., which was the only attempt made to notify the defendant of the protest of the note.” Appellant’s contention is that the affidavit is deficient in not averring that the “ affiant is informed, believes and expects to be able to prove’’the facts averred by him. But this is necessary only where the affiant cannot state the facts as of his own knowledge: Newbold v. Pennock, 154 Pa. 593. In Eyre v. Yohe, 67 Pa. 477, it was said, that it is “ not necessary, in a positive affidavit like this, to allege that the defendant expects to be able to prove the defense alleged in the affidavit.” In Moeck v. Littell, 82 Pa. 356, this Court said: “ It is true, the more usual form of an affidavit of defense is that the affiant ‘verily believes ’ the facts which he alleges. Here, instead of belief, he positively avers their actual existence. In its legal effect, this form of an affidavit may be no stronger than one in the usual form; but certainly it is no weaker. It is quite as effective to prevent the taking of judgment.”

[262]*262Other authorities to the same effect might be cited, but it is unnecessary to do so. On principle as well as authority the court below was clearly right in discharging the rule for judgment.

Judgment affirmed.

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41 A. 27, 187 Pa. 260, 1898 Pa. LEXIS 799, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wolf-v-jacobs-pa-1898.

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