author: Van Dusen, J.,

text:
    Worrell’s Estate.

      George J. Edwards, Jr., for exceptions.

      Mercer B. Tate, Jr., and Ulric J. Mengert, contra.
    Dec. 7, 1928.
   Van Dusen, J.,

The will contained a general clause substituting the next of kin of legatees who died before the testatrix. By the first codicil, testatrix disposed of certain furniture and boxes. By the second, codicil, she noted the death of a money legatee and substituted for her persons, who were not her next of kin. By the third codicil, she gave money to a religious society and said: “This is codicil to be added to my last Will in. place of the one that is there now — that I request to be destroyed.”

This codicil had only one witness and the bequest to the religious society was, therefore, void. The next of kin of the legatee claimed that the codicil operated, nevertheless, as a revocation of the second codicil, and that he was-entitled to be substituted for the legatee under the original provisions of the will. The Auditing Judge regarded the revocation as conditional, and, therefore, ordered distribution under the provisions of the second codicil.

We will assume that this language of the third codicil refers to the second codicil, because the latter deals with money and the first codicil deals only with furniture — a matter on which there may be doubt. We will also assume that it is sufficient to revoke the codicil referred1 to — the argument being that it is a “repeal ... by some other will or codicil in writing” (to use the language of section 20 (a) of the Wills Act of June 7, 1917, P. L. 403). The third codicil manifests an intention to displace the prior codicil and thus make it ineffective, even without the direction to destroy it. Of course, if it was no more than an attempted “repeal” by destruction, it would not be effective,, because the destruction was never carried out. And it is well established that, the revocation of a revoking codicil will revive the part of the will which the-latter revoked. The question remains whether the revoking clause in the third, codicil is conditional on the validity of the dispositive parts of that instrument.

Testatrix does not expressly make such a condition. She says that she displaces one gift by another, but does not say that she displaces the first only for the second, an intention which the testator, in substance, declared in. McDermott’s Estate, 1 D. & C. 789, and the contrary of which he declared in Melville’s Estate, 245 Pa. 318, and Lutheran Congregation of Union Church’s. Appeal, 113 Pa. 32.

Not being able to determine with certainty the intention of the testatrix,, we must rely upon rules, and the rule is thus stated in 1 Jarman on Wills,. 344 (6th ed., 169) : “If, on the other hand, the new devise be ineffectual, on. account of the attestation being insufficient for a devising, though sufficient, for a revoking, will, the revoking clause becomes inoperative on the principle-before noticed that the revocation is conditional and dependent on the efficacy of the admitted new disposition, and that failing, the revocation also-fails; the purpose to revoke being considered to be, not a distinct independent-intention, but subservient to the purpose of making the new disposition of the property; the testator meaning to do the one so far only as he succeeds in. effecting the same. But it seems that, if the second devise fails, not from the-infirmity of the instrument, but from the incapacity of the devisee, the prior-devise is revoked.”

This is quoted with approval in Melville’s Estate, supra, the last sentence being given as authority for the second ground of decision in that case. There, Stewart, J., also said: “They [the authorities] all recognize a clear distinction between failure of the dispositive part of the revoking instrument because of a defect in the instrument and failure because of extrinsic circumstances; and there is entire concurrence of view that in the former case the revocation is inoperative, while in the latter it must prevail.” The same, in substance, is said in Price v. Maxwell, 28 Pa. 23.

Neither of these cases, nor any other in our own State to which we have been referred, involved instruments defectively executed, and the approval of the first branch of the rule may be characterized as dictum. It is authoritative, however, and seems to us to carry out what probably was the intention of the testatrix. We willingly follow its guidance, and it controls this case.

The exceptions are dismissed and the adjudication is confirmed absolutely.


source: Caselaw Access Project

author: Hakgest, P. J.,

license: Public Domain

text:
    Commonwealth v. Plasey.

      Earl V. Compton, for plaintiff; Dress Pannell, for defendant.
    July 14, 1928.
   Hakgest, P. J.,

This matter comes before us upon the motion of the district attorney to dismiss the case. That motion must be determined from the record. On Aug. 17, 1927, the defendant presented his petition, averring that upon the information of sergeant of police of the Borough of Steelton he was charged before the chief burgess with, disorderly conduct, in violation of a borough ordinance, and sentenced to pay a fine of $10 and the costs of prosecution; that he was not guilty of such offense, and asked for an appeal from said judgment.

This petition, with the order of the court allowing same, was filed Aug. 20, 1927. On Sept. 27, 1927, the district attorney presented his motion, setting out that the term in which the appeal was allowed had ended; that there was no appeal taken in compliance with the order of court; and that the court is now without jurisdiction to allow an appeal nunc pro tunc.

On Sept. 30, 1927, the defendant presented a petition, averring the allowance of the appeal by the court; that he gave notice of his intention to appeal; that within the time allowed by law he filed a bond with the chief burgess in proper form and had made repeated demands upon the chief burgess for a transcript. He asked for a rule on the chief burgess to show cause why he should not file in the office of the Clerk of the Court of Quarter Sessions a transcript of the record in the case in which he was sentenced. That petition the chief burgess answered, admitting that the defendant gave notice of his intention to take an appeal, and requested a transcript before the acting burgess prior to the presentation of the petition for the allowance of an appeal; that the defendant presented his bond, conditioned for the prosecution of the appeal, but denied that the defendant, either by himself or his counsel, made repeated demands for a transcript or that affiant refused or neglected to furnish such transcript. The answer also averred that counsel for the defendant called him by telephone on Aug. 16, 1927, and requested a transcript, and counsel was advised that the chief burgess had not held said hearing, but that the president of the borough council, in his absence, had conducted the proceeding, and that the defendant should apply to the said president of the borough council for the transcript. The answer also denies that at any time after the allowance of an appeal was any application made to him for the entering of an appeal or for a transcript, and denies that he had any actual notice or knowledge of an appeal. It avers that upon the service of the rule to which this was an answer the affiant obtained a certified copy of the transcript which was attached to said answer. The answer also avers that there is no proceeding of the Commonwealth against George Plasey, but the proceedings referred to are had in the case of the Borough of Steelton v. George Plasey, and that the allowance of the appeal in the case of the Commonwealth v. George Plasey is ineffective to permit an appeal in the case of the Borough of Steelton v. George Plasey.

. The facts averred in the answer must be taken as true. It, therefore, appears that there was an allowance of an appeal, but no appeal taken.

We think that the case of the City of York v. Miller, 33 Lanc. Law Rev. 213, the reasoning of which we adopt, is conclusive of this question. In that case the defendant had been convicted of violating a city ordinance, had applied to the court for an allowance of an appeal, which was granted upon the condition of the filing and approval of a bond. The bond was approved and filed, but no transcript was filed in the prothonotary’s office. After the lapse of several terms, the defendant petitioned for service to have the appeal filed nunc pro tunc, and it was held that a rule to strike off the appeal must be made absolute. The same proceeding was had in the instant case as in that case, except that the allowance of the appeal was made in the case of City of York v. Miller, whereas the allowance here is made in Commonwealth v. Plasey, and there is no such case. A charge for the violation of a municipal ordinance should be brought in the name of the municipality. In that case the court said: “After the allowance of an appeal had been granted by this court, it became the duty of the party who obtained that allowance to take out his appeal in conformity with, and in compliance with, the well-known requirements of the law regulating appeals of this character. . . . The mere notifying of the mayor’s clerk was not taking an appeal. It was the duty of the appellant, after he had obtained an allowance of appeal from the proper court, to show it to the court from which the appeal was to be taken and demand that his appeal be noted and that a transcript issue to the appellant in order that he could enter it in the prothonotary’s office according to law.”

No such thing was done in this case. The defendant secured an allowance of the appeal and took no further steps. He gave no notice to the burgess or acting burgess of such allowance, nor did he request the burgess or acting burgess to enter his appeal upon the record.

The Act of April 1, 1925, P. L. 98, provides that in case of a summary conviction, either party “may, within five days after such conviction, appeal to the Court of Quarter Sessions, or any judge thereof, upon cause shown.”

The very language of the act requires two things — both an allowance and an appeal. This defendant secured the allowance but did not take the appeal.

Because of the failure to take the appeal in time, the defendant now asks us to allow it nunc pro tunc. This we have no power to do. In Cameron v. Fishman, 291 Pa. 12, 14, it is said: “When a statute fixes the time within which an act must be done, the courts have no power to enlarge it, although it relates to a mere question of practice.” To the same effect are Mindlin v. O’Boyle, 283 Pa. 352; Singer v. D., L. & W. R. R. Co., 254 Pa. 502; Harris v. Mercur, 202 Pa. 313; Schrenkeisen v. Kishbaugh, 162 Pa. 45; City of York v. Miller, supra.

For these reasons, the motion of the district attorney must be sustained.

Now, Feb. 14, 1928, the motion of the district attorney to dismiss the proceedings in the above stated case is sustained and the proceedings are hereby dismissed.

From Homer L. Kreider, Harrisburg, Pa.


author: Landis, P. J.,

text:
    Hargrave Service System v. Glouner.

      Charles W. Baby, for rule; George Ross Eshleman, contra.
    March 24, 1928.
   Landis, P. J.,

On Aug. 10, 1926, an appeal was entered in this court from the judgment of an alderman of Lancaster City, given in favor of the plaintiff. Nothing more was done in the case until Jan. 6, 1928, when the plaintiff filed its statement of claim, and this statement was served on the defendant’s attorney on the same day. Thereupon, on Jan. 14, 1928, the defendant presented his petition to this court, in which he set forth, under oath, that the plaintiff was a non-resident and that he had a full, complete and just defense to the whole of the plaintiff’s claim. Upon the same, he obtained this rule.

Section 1 of Rule xm of the Court of Common Pleas, page 15, provides that “In cases where the plaintiff resides out of the State in qui tarn actions, or where the plaintiff after suit brought has been discharged under the insolvent or bankrupt laws, the defendant, on motion and affidavit of a just defense against the whole demand, may have a rule that the plaintiff give security for costs, returnable on a day certain to be fixed by the Court. Upon the rule being made absolute, the Court may direct security to be entered, and, upon a failure of the plaintiff so to do, may direct the entry of a judgment of non-suit.”

The attorney for the plaintiff contends that, as under the Practice Act of May 14,1915, P. L. 483, the defendant was bound to file an affidavit of defense within fifteen days, he must set forth the nature and character of his defense before a rule of this character can be enforced. Certainly, there is no such requirement in the rule of court. It is there stated that, if he asserts under affidavit that he has a full defense to the whole of the plaintiffs’ claim, he is entitled, as against a non-resident, to security for costs. I do not think the Practice Act is involved in this proceeding, for if it is, the right way to raise the question is to ask for judgment notwithstanding the petition and rule. If the court has a right to make such a rule, it must be sustained as it is written, and if no such right exists, then the plaintiff is entitled to judgment notwithstanding it. It is a very old rule, enforced, I believe, in all the courts, and long antedates the Practice Act. I do not think it was the intention of the act to interfere with its enforcement.

I am of the opinion that the rule should be made absolute and that the plaintiff should be ordered to enter security for costs in the sum of $50 within twenty days of the filing of-this opinion, and this order is accordingly now made. Rule made absolute.


author: Ryan, P. J.,

text:
    Travelers Hotel Company v. Yorke.

      Gilkeson & James, for plaintiff; John L. DuBois, for defendant.
    May 7, 1928.
   Ryan, P. J.,

The plaintiff sues for the recovery of 150 box springs in the possession of the defendant. In her affidavit of defense the defendant avers that the said box springs were transported to the premises occupied by the defendant and her husband, William J. Yorke, by the said William J. Yorke, in 1922, and left there. In 1923, the latter deserted the defendant, declaring “he was leaving forever.” Defendant avers that when he did so, “he presumably presented the box springs to the defendant in lieu of the inevitable and rapidly accruing storage charges.” “The sufficiency of such an affidavit must be determined by the same rules that control in other cases where like affidavits are required. It must state frankly and fairly the facts that support the claim of defense, not legal conclusions or mere inferences drawn by the affiant:” Drug Co. v. American Surety Co., 47 Pa. Superior Ct. 403. The affiant in the instant case sets up her inference of the fact of a gift, but does not assert it. The affidavit is insufficient in this particular. She also asserts a claim for storage against the property replevied. This is a set-off and set-off is not permitted in an action of replevin: National Cash Register Co. v. Cochran, 22 Pa. Superior Ct. 582; Eureka Knitting Co. v. Snyder, 36 Pa. Superior Ct. 336; Hall’s Safe Co. v. Walenk, 42 Pa. Superior Ct. 576; Guernsey v. Moon, 46 Pa. Superior Ct. 645. Further, only a warehouseman has a lien for storage in Pennsylvania: Mitchell v. Standard Repair Co., 275 Pa. 328. The defendant does not aver that she is a warehouseman. In this particular, also, the affidavit of defense is insufficient.

And now, to wit, May 7, 1928, the rule is made absolute. The prothonotary to assess the damages.

From Calvin S. Boyer, Doylestown, Pa.


author: Appel, P. J.,

text:
    Lintner’s Estate.

      John E. Malone, for next of kin; Harry L. Raub, for estate.
    May 10, 1928.
   Appel, P. J.,

Laura M. Lintner, formerly Laura M. Mc-Naughtan, testatrix, by will dated Nov. 30, 1926, gave all her estate absolutely to Charles Wesley Lintner, making him sole legatee and executor. She married him Jan. 25, 1927, and died May 29, 1927, childless.

Charles W. Lintner, the surviving spouse, claims the entire estate as sole legatee under the will; the collateral heirs of testatrix claim as next of kin, contending that the legacy to Lintner was revoked by the subsequent marriage, thus creating an intestacy of the whole estate, whereupon the estate would be divided, after the $5000 exemption, equally between Lintner and the collateral heirs. The latter base their contention upon the interpretation which they place on section 21 of the Wills Act of June 7, 1917, P. L. 403, which is as follows: “When any person, male or female, shall make a last will and testament and afterward shall marry . . . and shall die, leaving a surviving spouse . . . every such person, so far as shall regard the surviving spouse, . . . shall be deemed and construed to die intestate, and such surviving spouse . . . shall be entitled to such purparts, shares and dividends of the estate, real and personal, of the deceased, as if such person had actually died without any will.”

We cannot agree with the interpretation made by the collateral heirs. The law never demands an unreasonable thing, and the above-quoted section of the Wills Act, therefore, cannot have been intended to lessen the estate of the surviving spouse. It is unreasonable to suppose that the act should have the effect of forcing upon the surviving spouse an estate less than that which he would take as a legatee under the will. The clear meaning of this section is that a will made before marriage is revoked by the marriage “so far as shall regard the surviving spouse,” that is, pro tanto. If it were necessary to force this act upon every surviving spouse, and particularly upon this one, Charles W. Lintner, the only effect it would have here would be to revoke the will to the extent that the surviving spouse would take under the intestate laws, i. e., after the $5000 exemption, one-half, and the rest of the estate, the other half, would go under the will, and, hence, to Lintner as well. For the whole will is not revoked; only such a part as may be affected by the surviving spouse taking the share which the law says, at least, shall go to him, and the will speaks for itself as to that part not touched by the award to the surviving spouse.

It is not necessary, however, to rely solely upon this reasoning to justify awarding the entire estate to Lintner, the surviving spouse and sole legatee. Under our interpretation of this section of the Wills Act, we are not compelled to apply it to this case unless we are specifically requested to, and, inferentially, the surviving spouse has failed to make such a request, since he claims as sole legatee, and hence seeks to enforce the provisions of the will as it was intended by testatrix. His claim as legatee is equivalent to an election to take under the will. Section 21 of the Wills Act is none other than section 15 of the Act of April 8, 1833, P. L. 249, modified so as to make the law the same with regard to men and women alike. This section of the Act of 1833 was discussed in Fidelity Trust Co.’s Appeal, 121 Pa. 1. There a testator bequeathed one-half of his residuary estate to his betrothed, whom he married five days after the execution of the will. He subsequently died without issue of the marriage, and it was held that by the marriage the will had not been revoked as to the widow and that she was entitled to take under the provisions thereof. Judge Penrose, in his opinion in the court below, said, in commenting on section 15 of the Act of 1833: “The conclusion ... is irresistible that the only object was the protection of the widow herself, and it is contrary to all rules of interpretation to permit an act designed to confer a benefit to be so enforced as to cause an injury.” In the opinion of the Supreme Court, affirming the decision of the court below, Mr. Justice Paxson calls particular attention to the fact that section 15 of the Act of 1833 does not use the word revoke whatsoever, and goes on to say: “It is very clear, however, that under our Act of 1833 an antenuptial will can be avoided by the widow so far as her rights are concerned; that is to say, she can elect to come in and claim her share of her husband’s estate under the intestate laws. In all other respects the will stands,” and this particular statement is in line with our reasoning earlier in this opinion. Then later he says: “If she does not elect to make such claim, the will is not affected in any respect. ... We regard the 15th section of the Act of 1833 ... as an enabling act, . . . [and] being an enabling statute, it is to be construed liberally. . . . The act declares for remedy that the widow, whether provided for or not, should have her share of the estate under the intestate laws. But the act does not force it upon her. It is hers if she elect to take it, not otherwise. Being for her benefit, it is for her to elect to accept its benefits, and if the benefits under the will are greater than under the intestate laws, the statute ought not to be enforced against her option.”

It is seen, then, that this section of the Act of 1917 should not be considered as operating without regard to the wishes of the surviving spouse, any more than did section 15 of the Act of 1833. It is an act to be used by him if he feels it necessary or desirous so to do. If he does not wish to employ its aid, as it would appear to be the case here, we will not force it upon him, and full effect will be given to the will as it was written. No contentions on the part of collateral heirs can force the surviving spouse to seek the assistance of the enabling statute, nor compel us to apply it.

The entire estate is awarded to Charles Wesley Lintner as sole legatee under the will of Laura M. Lintner.

Balance for distribution, as appears by account......... $22,067.28

Distribution.

To Charles Wesley Lintner, residue.................... $21,525.93

To Register of Wills, transfer inheritance tax.......... 541.35

$22,067.28

It is ordered and decreed that Charles W. Lintner, executor as aforesaid, do pay the amounts, as herein directed, to those respectively entitled to the same.

This report is confirmed nisi.

Prom George Ross Eshleman, Lancaster, Pa.


text:
    Schott’s Estate.

      Warwick Potter Scott, for exceptants.

      W. H. Porter and Walter Lee Sheppard, contra.
    Dec. 21, 1928.
   Van Dusen, J.,

This will contains a large number of specific legacies and money legacies and a residuary clause. By a codicil, testatrix directed that a specific piece of real estate should be sold by her executor within three years, and that the proceeds up to $40,000 should be held in certain trusts; and further directed “Should the net proceeds of said real estate exceed the sum of Forty Thousand Dollars,” the excess should become part of a trust created for a niece by the will. This niece claimed that a fund should be set up out of the general personal estate to take care of maintaining this real estate between the date of the testatrix’s death and the date of its sale, arguing that the will converted it into personalty, and that the expense of preserving and caring for a specific piece of personal estate should be borne by the general personal estate. This claim was dismissed by the Auditing Judge, and exceptions follow.

There is, of course, a conversion, but that does not alter the situation. This piece of property is set apart from the general estate on its own terms, and whether it is technically personal or real estate, it must take care of itself. The legatee gets the income from it, if any, segregated from the general income, and if there are expenses in taking care of it, other than the usual administration expenses, they must be borne by the trust res. If we were concerned, for example, with rare objects of art, which had to be insured and stored and repaired while awaiting a difficult sale, the expense of so doing would fall on the specific legatee. This position as a thing apart is consistent with the superior rank of a specific legacy exempted from abatement with money legacies. The first, second, third and seventh exceptions of both exceptants are dismissed.

Commissions at 5 per cent, on a gross estate of $175,000 were allowed to the executor after hearing a statement of the services performed. This is more than would be allowed for ordinary services; but the percentage method of fixing compensation is only a basis from which to work to an ascertainment of the true value of the services, and more or less than the usual percentage may be allowed according to circumstances. The finding of the Auditing Judge that there were special services entitled to extra compensation is supported by the evidence. The will authorizes the executor (who was her cousin) to “fix the amount of his compensation.” Assuming that this would not authorize more than reasonable compensation, we should, nevertheless, not approach the question in an illiberal frame of mind. The fifth and eighth exceptions of both exceptants are dismissed.

Exceptions six and nine were to counsel fee. As stated in the adjudication, the record shows that no objection was made thereto at the audit, though the exceptants were represented. If specific objection had been made, as in the case of the commissions, evidence could have been offered in support of the fee requested. These exceptions are dismissed.

Testatrix gave $50 “to each member of my (Bible) Class whose name, shall be found recorded in a book containing the names of the members of my Class at the time of my death.” A book was found, but it contained a great many names besides those of the Bible class members. Testimony was taken to identify those who were members of testatrix’s Bible Class at the time of her death, and from it the Auditing Judge made a finding which is supported by that testimony. Exceptions four and ten are dismissed.

All exceptions are dismissed and the adjudication is confirmed absolutely.


author: Martin, P. J.,

text:
    Goetz v. Goetz.

      Golder & Felger, for libellant; G. Butterworth, for respondent.
    June 25, 1928.
   Martin, P. J.,

A libel was filed on Sept. 18, 1919, charging desertion. A subpoena issued and was returned non est inventus. An alias subpoena was also returned non est inventus. Publication was duly made. A master was appointed, who heard the testimony and filed a report recommending a divorce. The master’s report was approved, and, after proclamation, on June 20, 1921, a final decree was entered divorcing the libellant from respondent.

On Aug, 10, 1921, respondent filed a petition, averring that she had not been served with the subpoena or libel, had no notice of the master’s hearing or of the final rule for divorce; and that she had no knowledge of the proceedings until June 21,1921, when she read in the “Evening Bulletin” a notice that the divorce had been granted. She alleged in her petition that the only-evidence to support the charge of desertion was the testimony of the libellant, denied that she deserted the libellant, alleged that he deserted her, and averred, if given an opportunity, she would prove “this charge by a considerable number of witnesses.” The petition further averred that, during the pendency of the divorce proceedings and since her marriage to the libellant, she has been a resident of Philadelphia continuously, except for a period of about four months, from Oct. 12, 1916, until Feb. 4, 1917, during which time she visited Germany, and interviewed her husband’s mother for the purpose of ascertaining his address. That the address given by libellant’s mother directed her to Milwaukee, and when she wrote there, the postal authorities returned her letter, marked “No such street.”

A rule was granted, returnable Aug. 29,1921, to show cause why the decree of divorce should not be set aside and the case again referred to the master for the purpose of taking testimony. To this petition no answer was filed, and, on Aug. 29, 1921, the rule was made absolute and the master was directed to take further testimony .

A meeting was held on Dec. 191, 1921, when the respondent appeared before the master and stated that she was unable to procure the attendance of her witnesses. Another meeting was fixed for Jan. 5, 1922, when she was again unable to produce witnesses. On April 13, 1922, the respondent appeared and testified that she was married on July 14, 1914, and that the libellant left her on Aug. 15, 1916. She denied the truth of the testimony given by libellant, based upon which the master recommended a decree for divorce, and testified libellant told her he did not like married life and wanted to be single, and did not need any wife; when he lost his business he put all the blame on her and left her. That for eight weeks she was in a hospital, as the result of an operation, and when she returned home libellant said he did not like to be married, liked to be by himself and didn’t want a wife, wanted her to give him money, and when she refused, blamed her for losing his business and said he was going, and would consent to give her $5 a week for support if she would let him go; and that she had never seen him from that time until November of the year previous to 1922, and when they met he denied his identify and asserted he was another man.

She swore that libellant’s testimony was untrue, and stated that she wanted to start a suit herself, on the ground that libellant deserted her.

No further testimony was taken, and the master made a return of the evidence without any recommendation.

On June 4, 1928, respondent filed the petition now before the court, reciting the divorce proceedings, and averring that, believing the divorce was absolute, she entered into a marriage with Frederick Joe Jager, and continued in that relation until his death.

The petition prayed for leave to withdraw the petition she presented on Aug. 10, 1921, upon the filing of which the rule was granted to show cause why the divorce should not be set aside, and made absolute on Aug. 29, 1921; and prayed that the order setting aside the decree for divorce be vacated and an order be entered that the final decree of divorce entered June 20, 1921, be confirmed absolutely.

An answer was filed by libellant, averring that the purpose of respondent in having the order setting aside the divorce vacated by withdrawing her petition upon which the order was made, is to aid her to obtain a part of the estate of Joseph Jager, against the interest of his children by his former wife. It is denied in the answer that respondent believed the divorce was absolute when she entered into the marriage relationship with Jager, but that she married him in 1918, the year before the divorce proceedings were instituted.

The court, having acted upon her petition granted Aug. 29, 1921, and set aside the decree of divorce, respondent should not now be allowed to withdraw that petition and change the record based upon it.

And now, to wit, June 25, 1928, the petition filed June 4, 1928, requesting leave to withdraw the petition filed Aug. 10, 1921, to set aside the decree of divorce, is refused..


author: Gordon, Jr., J.,

text:
    Weil v. Irwin Ehrlich & Co.

      Henry Arronson, for rule; O. 3. Roberts, contra.
    March 10, 1928.
   Gordon, Jr., J.,

This is a rule to show cause why two suits between the same parties should not be consolidated. The facts of the case appear to be as follows: On Jan. 25, 1927, the plaintiff and defendant, who were copartners, entered into an agreement dissolving their copartnership. Part of the terms of the agreement provided for the delivery by the defendant to the plaintiff of four promissory notes, the first two for $5000 and the last two for $10,000, due, respectively, on April 1, July 1, Oct. 1, 1927, and Jan. 2, 1928. The agreement also provided that “the last note for $10,000, due Jan. 2, 1928, may be subject to deduction of my share in any losses which shall occur in the outstanding accounts, consisting of book accounts and notes which said firm (I. Ehrlich & Co.) held up until Dec. 31, 1926. One-half of such losses to be deducted from my last note which Abraham Weil holds against the firm.”

When the first two notes came due, the defendant deducted certain losses which had then been determined. When the third note came due, he attempted to make a similar deduction, and the plaintiff objected to this being done, and brought suit on the note. That suit was brought in this court. There are two issues in' that suit: one, whether the parties had agreed, subsequent to the execution of the contract, that, as the notes became due, losses already ascertained might be deducted. This the defendant avers and the plaintiff denies. Two, the extent and amount of the losses.

When the fourth and last note became due, suit was brought thereon in the Court of Common Pleas No. 3, and, on rule to show cause, that court transferred the suit to this court.

There can be no doubt, by the admissions of the parties, that proper deductions for losses which actually occurred may be made either upon the third or the fourth note, but, inasmuch as both notes are now due, we are of opinion that it would promote justice and prevent the expense and delay incident to a multiplicity of suits to consolidate the two actions. As the various rules in the suit brought in No. 3 court on the last note, which suit was transferred to this court, stayed proceedings, no affidavit of defense has been filed in that suit, and it is not, therefore, at issue.

We are accordingly of opinion that this rule to consolidate the actions is premature and should be taken after the two suits are at issue. The said rule is, therefore, discharged, without prejudice to the defendant, if he so desires, hereafter to renew his application for consolidation when both suits are at issue.


author: Schaeffer, P. J.,

text:
    Commonwealth v. Gajewski.

      M. Bernard Hoffman, for Commonwealth.

      Lee Friday, for defendant and rule.
    Feb. 25, 1928.
   Schaeffer, P. J.,

The defendant was indicted and tried upon a bill charging statutory rape, taking a female child under the age of sixteen years, and fornication and bastardy. The jury returned a verdict of not guilty upon the first two counts and convicted upon the third.

The defendant has now moved for a new trial, and assigns as error the action of the court in permitting the prosecutrix to exhibit the child to the jury. At the time of trial the child was twenty-three days old. From the record it appears that private counsel for the Commonwealth said, when the mother of the child was upon the stand, “Let us see the baby. I would like to have her show the baby to the jury.” To this the defendant objected. The objection was overruled, and the mother of the child did walk before the jury and permit them to see the child.

This is alleged as error. There is no allegation that the Commonwealth, in its argument or otherwise, attempted to induce the jury to conclude from this momentary view of the baby that its features resembled those of the defendant.

Is the mere exhibition of a child less than thirty days of age to the jury in a fornication and bastardy case such error as requires the granting of a new trial after conviction?

In the great majority of bastardy cases the prosecutrix brings her child to court with her, and in most cases takes the child with her when she goes upon the witness-stand. It would seem that an endeavor to employ a comparison of the features of a very young child with those of the alleged father as evidence to obtain or to support a conviction would be error, because any such “imaginary similarity” must be held to be “so fanciful and visionary as to be of no value as an item of substantive proof:” Com. v. Pearl, 33 Pa. Superior Ct. 97, 100. But in the case just cited it was not held to have been error for the district attorney to take the child, there sixteen months of age, in his arms and to exhibit it to the jury and to call their attention to an alleged resemblance to the defendant. In Com. v. Burdge, 30 Dist. R. 289, Judge Barnett says that “argument for the prosecution; based upon supposed resemblance of the prosecutrix’s child to the defendant, seems to be permissible in Pennsylvania, however unreliable such evidence may be,” but he does point out it is only fair that, by profert of the child or some other method, notice should be given to the defense in advance- of the summing up that an argument would be made upon the alleged resemblance. In jurisdictions other than Pennsylvania there is much conflict upon this point: 40 Am. Law Reps. 94, and note. With us, it seems that the question is largely one within the discretion of the trial judge: Com. v. Pearl, supra. In our case, in the absence of any argument by the Commonwealth that there was a resemblance between the features of the defendant and the child, we cannot conclude that the mere exhibition of the child to the jury was prejudicial to the defendant or contrary to the law of this Commonwealth.

And now, to wit, Peb. 25, 1928, rule discharged.

From Charles K. Derr, Reading, Pa.


author: Searle, P. J.,

text:
    Forest City Borough Election.

      Gerritt E. Gardner, for Susquehanna County.

      E. L. Dacies, for sheriff; E. P. Little, for petitioners.
    May 10, 1928.
   Searle, P. J.,

22nd judicial district, specially presiding,

After the primary election for Judge of Susquehanna County, held on Sept. 10, 1927, four petitions were presented to the Court of Common Pleas of Susquehanna County under the 1st section of the Act of April 23, 1927, P. L. 360, alleging, inter alia:

“2. That upon information which we consider reliable, we believe that fraud, although not manifest on the general return of votes made therefrom for the primary election held on Sept. 20, 1927, in and for the said district as aforesaid, was committed in the computation of the vote cast in the said election district, to wit, 2nd District of the 1st Ward in and for the Borough of Forest City as aforesaid, and in the marking of the ballots for the said election, and especially in the computation of the vote cast for the office of Judge of the Courts of Susquehanna County on the Republican primary ballot.

“Wherefore your petitioner prays that your honorable court make an order that the ballot-box used at the aforesaid primary election in said district be taken from the place provided by law in Forest City, Pennsylvania, and cause the entire vote thereof to be correctly counted by persons designated by your ‘honorable court, as provided by the Act of Assembly of the Commonwealth of Pennsylvania, being Act No. 231 of the year 1927.’ ”

Upon presentation of these petitions and a deposit- of $50 in each ease, the court directed the Sheriff of Susquehanna County to bring the ballot-boxes in four election districts of Forest City Borough into court and the ballots to be recounted; the sheriff was also directed to subpoena the judges of election of said four districts.

Three of the cases were so proceeded with that the ballots were recounted, as provided by law, in the presence of the court, and in all said three districts in which the ballots were recounted no evidence of any fraud, accident or mistake nor substantial error was discovered.

In the 2nd District of the 2nd Ward of Forest City Borough the sheriff was unable to procure the ballot-box; it had been stolen from its place of deposit, and it has not been found to this day. The sheriff made effort to find this box and employed a detective to aid him in his search. No persons, although the signers of the petition for said 2nd District of the 2nd Ward were called in open court, appeared, nor was any fraud, accident or mistake nor substantial error shown in connection with the counting of the ballots of said district, and the count made by the officers the night of the primary election was taken as the official count for said ward. The court directed that the $50 deposited in each of said four cases be paid, as provided by the Act of 1927, to the Treasurer of Susquehanna County.

On Jan. 10, 1928, a rule was granted upon the county commissioners and upon the signers of said four petitions to show cause why all the costs in connection with the bringing of said ballot-boxes into court should not be paid by them. The matter has now been argued by counsel, and it is for us to determine whether these costs should be paid by the County of Susquehanna or by the petitioners, signers of said four petitions.

The signers of said petitions contend that the costs cannot be imposed upon them because there is no express statute provided for their payment.

The petitioners in an election contest which has proven unsuccessful cannot be charged with costs for collecting old ballot-boxes and furnishing new ones, for stenographers’ fee and for the fees of various court officers, such as cryers, tipstaves and pages: Patton’s Election, 47 Pa. Superior Ct. 584.

Costs are entirely matters of statutory enactment, and a party claiming costs from the adverse party must be able to point to some statute giving them: Bressler’s Petition, 6 Dist. R. 656.

When a party claims costs, he must be able to point to some statute authorizing his collection thereof, as costs are entirely matters of statutory enactment : Hotchkiss v. Harvey & Snyder, 25 Pa. C. C. Reps. 80.

There is no statutory provision for the payment of any further costs by the petitioners. The sum of $50 is forfeited, and when this has been done, the petitioners’ financial responsibility for costs is ended, there being no further statutory enactment providing for the payment of further costs.

“Costs were not given by the common law to either party. They are the creature of the statute, and, unless the plaintiff can produce some statute giving him a right to the costs here claimed, the rule must be made absolute and he must pay his own witnesses:” Hoover v. Union Township School District, 4 Pa. C. C. Reps. 520.

“The matter is a public one, and we, therefore, think that the city should pay the costs. . . . The costs of these proceedings shall be paid by the City of Easton.”

“Security for costs is not demandable of petitioners in election contests. Their liability is not a primary one, and after jurisdiction attaches by filing a petition, the proceeding is a public one, in which they have no interest other than any citizen, and which they cannot withdraw. The statute imposes no liability for costs upon either the contestants or respondents in any contingency:” Northampton County Contested Elections, 18 Pa. C. C. Reps. 584; 20 Corpus Juris, 273. See, also, East Donegal Township’s Contested Election, S. D. & C. 749.

Petitioners filing a petition to contest an election return commenced a litigation in which the public had important interest and rights, and petitioners were not allowed to withdraw after the statutory time for filing a petition had expired, as the jurisdiction might have been endangered and public rights sacrificed. See, also, Contested Election of J. L. Grimm to Common Council, 14 W. N. C. 303. See, also, Easton Councilmen’s Salaries, 8 D. & C. 752, 765.

Section 2 of the Act of April 23, 1927, P. L. 360, provides for the deposit of $50 with the prothonotary of the proper court, or a bond in the sum of $200, etc.; and section 4 of the same statute provides for the forfeiture of the above sum of $50 if it shall not appear that fraud or substantial error was committed. It is further provided in section 4 as follows: “It shall be the duty of the county treasurer forthwith to collect from the surety on said bond ($200) the sum of $50 and the costs of suit. The costs of suit being the costs incurred by the treasurer in bringing suit for the collection of the $50, not the costs necessitated in sending for the ballot-boxes,” etc.

We are clearly of the opinion that the $50 deposited by the petitioners in each of the four cases is all that they can be compelled to pay. We think further discussion of this ease is unnecessary.

And now, May 10, 1928, the rule granted on Jan. 10, 1928, upon the petitioners to have the ballot-boxes opened to show cause why they should not pay costs in addition to the $50 in each case is discharged, and the rule granted on the same day upon the county commissioners to show cause why the County of Susquehanna should not pay the costs upon said four proceedings is made absolute. And that there may be no mistake as to which bills of costs said County of Susquehanna is to pay, we have filed with this order, with our approval, four bills to be paid by the County of Susquehanna. These bills include the bills of the sheriff for bringing in the ballot-boxes and searching for the missing box, also a bill for a detective employed by him in endeavoring to locate the missing ballot-box, also the fees of the Prothonotary of Susquehanna County, also the fees of the nine witnesses who were directed to appear in court during our investigation of these four cases.


author: Moyer, Dep. Att’y-Gen.,

text:
    In re Tax on Evidences of Indebtedness of Life and Fire Insurance Companies Without Capital Stock.
    July 9, 1928.
   Moyer, Dep. Att’y-Gen.,

You have asked this department to advise you whether a life or fire insurance company not having capital stock and writing cash policies is subject to the provisions of the Act of July 13, 1923, P. L. 1085.

This Act of 1923 is an amendment of section 17 of the Act of June 17, 1913, P. L. 507, as amended by the Act of July 15, 1919, P. L. 955. Said section 17 of the Act of 1913, as amended, provides, inter alia, as follows: “That all scrip, bonds, certificates and evidences of indebtedness issued, and all scrip, ' bonds, certificates and evidences of indebtedness assumed, or on which interest shall be paid, by any and every private corporation, incorporated or created under the laws of this Commonwealth or the laws of any other state or of the United States, and doing business in this Commonwealth, and all scrip, bonds, certificates and evidences of indebtedness issued, and all scrip, bonds, certificates and evidences of indebtedness assumed, or on which interest shall be paid, by any county, city, borough, township, school district, or incorporated district of this Commonwealth, are hereby made taxable in the year one thousand nine hundred and nineteen, and annually thereafter, for State purposes, at the rate of four mills on each dollar of the nominal value thereof.”

Several provisos are added to said section 17 following this quotation. Among these provisos is one to which you have made special reference, which reads as follows: “And provided further, that the provisions of this act shall not apply to fire companies, firemen’s relief associations, life or fire insurance corporations having no capital stock, secret and beneficial societies, labor unions and labor union relief associations, and all beneficial organizations paying sick or death benefits, or either or both, from funds received from voluntary contributions or assessments upon members of such associations, societies or unions.”

The inquiry which you have made raises two problems: First, do the words in said proviso “from funds received from voluntary contributions or assessments upon members of such associations, societies or unions” modify the expression “life or fire insurance corporations;” and, second, if it is determined that said words do modify the expression “life or fire insurance corporations,” then do the words “voluntary contributions or assessments” include corporations collecting a premium at the time the policy is issued— a cash policy, as you have termed it?

Let us consider the first problem; that is, whether the words “from funds received from voluntary contributions or assessments upon members of such associations, societies or unions” modify the expression “life or fire insurance corporations having no capital stock.” Making an examination of this latter expression, it is to be noted immediately that we are dealing with corporations. The expression is: “Life or fire insurance corporations” But in the case of the words “funds received from voluntary contributions or assessments upon members of such associations, societies or unions,” we are dealing with associations, societies or unions. Therefore, it would appear to be clear that this expression cannot be construed to modify the words “life or fire insurance corporations,” for the reason that these corporations are not “associations, societies or unions.”

A study of the act in question as a whole does not shed further light on the intention of the legislature. Consequently, let us give some consideration to the rules of construction applicable to cases of this character. Endlich on “Interpretation of Statutes,” § 414, says: “The strict rule of grammar would seem to require, as a general thing, a limiting clause, or phrase, following several expressions to which it might be applicable, to be restrained to the last antecedent.” Various cases are cited in support of the application of this principle, except where the manifest object of the enactment in question suggests otherwise.

In 2 Lewis’s “Sutherland Statutory Construction” (2nd ed.), § 420, this rule of construction referred to by Endlich is also set forth with further authorities in support thereof.

By applying this rule of construction to the matter at issue, the expression “from funds received from voluntary contributions or assessments upon members of such associations, societies or unions” only modifies the expression which it follows; that is, “secret and beneficial societies, labor unions and labor union relief associations and all beneficial organizations paying sick or death benefits.”

It is also clear that the qualifying and limiting phrase which does modify the expression “fire or life insurance corporations” is “having no capital stock.” This particular qualification immediately follows these words and directly modifies and applies to them.

In light of the fact, therefore, that we have concluded that the expression “from funds received from voluntary contributions or assessments upon members of such associations, societies or unions” does not modify or qualify the phrase “life or fire insurance corporations having no capital stock,” it is unnecessary to consider the second problem hereinbefore referred to.

The expression “life or fire insurance corporations having no capital stock” is general. The fact that some of these corporations may issue policies on solely a cash premium basis, as authorized by the law, does not change the situation with respect to such corporations.

You are, therefore, advised that all life insurance corporations having no capital stock, and all fire insurance companies having no capital stock, are not subject to the provisions of the Pennsylvania Loans Tax Act of June 17, 3913, P. L. 507, as amended, the last amendment being the Act of July 13, 1923, P. L. 1085, which you have expressly referred to.

From C. P. Addams, Harrisburg, Pa.


author: Marshall, J.,

text:
    Port Vue Borough v. Pittsburgh, &c., Railroad Company.

      Oliver K. Eaton and Harry M. Jones, for plaintiff.

      George Wick (of Reed, Smith, Shaw & McClay), for defendant.

      June 2, 1928.
   Marshall, J.,

Plaintiff filed this bill for a mandatory-injunction to compel the removal of railroad tracks from a public road, and for general relief. Defendant answered, averring that, with the consent of plaintiff, it had furnished a new and better road in place of the one occupied. A replication was filed, denying plaintiff had consented to the relocation and that the new road was better than the old.

The issues were: (1) The width of the former road; (2) whether the new road was constructed pursuant to any agreement between the parties; and (3) whether the road was reconstructed on the most favorable location and in as perfect a manner as the original road.

Findings of fact.

1. Plaintiff is a municipal corporation under the laws of the State of Pennsylvania, having been incorporated in 1892, and is situate along the westerly side of the Youghiogheny River, in Allegheny County.

2. Defendant is a corporation under the laws of the State of Pennsylvania, and for more than thirty years past has owned a line of railroad extending along the Youghiogheny River through the plaintiff borough.

3. In 1901, said railroad consisted of three tracks, located between the west bank of the river and a hill, or line of hills, which extends parallel to, and a short distance west of, the river. At the same period, an open, traveled, public road, known as the River Road, was located between the railroad and the river bank, immediately adjacent to, and parallel with, the railroad. This River Road extended from the boundary-line between Port Vue Borough and the City of McKeesport, southwardly through the borough, for a distance of more than 3000 feet, in the course of which it crossed a small stream, known as Still House Run.

4. Proceedings to lay out a public road in the portion of Elizabeth Township, which is now Port Vue Borough, were instituted in the Court of Quarter Sessions of Allegheny County, Pennsylvania, at No. 9, October Sessions, 1850, in which proceedings a report of viewers was subsequently filed and confirmed, whereby a road was laid out on substantially the same location occupied by said River Road in 1901. Thereafter, in due course, reviewers were appointed and an order entered that proceedings to open the road should be stayed until further order. The reviewers reported there was no occasion for such road, and no further order has been entered. Said court did not at any time fix the width of said road.

5. That portion of said River Road, as it existed in 1901, which extended southwardly from Still House Run, had been laid out by proceedings in said Quarter Sessions Court at No. 11, March Sessions, 1857. In said proceedings, the court at time of confirmation nisi of the viewers report, ordered that the width of said road, when opened, should be 33 feet, and subsequently confirmed absolutely the report of the viewers and issued an order to open.

6. That portion of said River Road, as it existed in 1901, which extended northwardly from Still House Run to the dividing-line between Port Vue Borough and the City of McKeesport, had been in use as a public thoroughfare continuously for more than forty-five years prior to 1901, on substantially the same location shown on the viewers’ report in the aforesaid proceedings at No. 9, October Sessions, 1850. Such portion of road, as it existed in 1901, was of a width of 25 feet.

7. Prior to its relocation as hereinafter described, the River Road was an unimproved clay road, located on solid ground. It contained a few grades for short distances, but its level spaces totaled more than one-half of its entire length. Its traveled portion did not occupy its entire width at all points, but it would have required only a small amount of grading and filling to render it fit for public travel over its whole breadth. Lying on solid ground on the top of the river bank, it was in no danger of destruction from the action of the river.

8. In 1901 and 1902, defendant company, in order to care for an increased volume of railway traffic, widened its railroad through plaintiff borough by laying down four additional tracks between the former three tracks and the river bank. In so doing, it occupied with said new tracks all of said River Road from a point near the dividing-line between Port Vue Borough and the City of McKeesport to a point distant 3500 feet southwardly therefrom. Because of such widening, defendant found it necessary to change the site of said River Road between the points aforesaid. Accordingly, during the progress of the widening operation, it moved said road nearer to the river and reconstructed the same, at its own expense, parallel with and at the same level as the railroad.

9. Prior to such relocation, the River Road was somewhat lower in elevation than the railroad. In making the aforesaid changes, defendant filled in the space between the railroad and the river with ashes, cinders, brickbats and slag until it was raised to the level of the railroad. It extended such fill at many points to the top of the river bank, with the slope of the fill extending to the water’s edge at an angle of from 30 to 35 degrees. For the distance of 1400 feet the fill was 41 feet in depth. No retaining wall was built, or other provision made, to support the fill or to protect it against the action of the river in time of flood or high water, except that large pieces of coarse slag were laid at the bottom of the slope and for a short distance up its face. These were not bonded in any manner and were inadequate protection against the action of the river.

10. The total level space on top of the fill, that is, between the railroad and the brink of the slope, was lQi feet in width, and on this space the River Road was relocated by defendant. No provision was made by defendant for the future widening of the new road to its original width, and such additional width cannot be obtained for road purposes, except at great expense, by building a retaining wall and extending the present fill to that wall.

11. The distance between the river and the railroad, as widened, is not less than 33 feet at any point, all of which intervening space is owned by the defendant, and, if properly filled and supported, is ample to accommodate a 33-foot roadway to the south of Still House Run and a 25-foot roadway to the north of said run.

12. Commencing within the first year after the relocation aforesaid, the action of the Youghiogheny River, in time of spring freshets, floods and high water, has gutted out and washed away considerable portions of the fill at various points along the road, thereby reducing the width of the roadway on top of the fill, so that the same has been narrowed at various points to 8, 10, 12 and 14 feet, respectively. Because of such narrowing, said road is now unsafe for public travel.

13. Immediately before defendant widened its railroad and reconstructed the public road, the council of plaintiff borough and a representative of defendant consulted regarding the proposed changes. Council was advised of the changes which defendant proposed to make, and, while it did not agree to them, it took no steps to interfere with the work and requested that the road be kept open during the course of the work. At a meeting of the council on April 22, 1901, a motion to instruct the borough solicitor to file a bill for an injunction against the appropriation of the road by defendant was voted upon and lost.

14. In 1915, the Allegheny By-Products Coke Works Company dug a trench in the road some two or three feet from the then top of the slope, laid a pipeline therein and refilled the trench. About 1920 a second pipe-line was laid in the same trench. These disturbances of the fill made it the easier for the river to wash away portions of the fill, but were not the prime cause of the erosion, the action of the river upon the fill being a continuing process, which had commenced in 1902, when the fill was completed.

15. Since the completion of the fill and relocation of the road, defendant has not repaired the road or the fill and has done nothing to protect them against the action of the river. It contends it was not obligated to construct the new road to the legal width of the former road, but that it discharged its duty by furnishing a roadway of the same width as the traveled portion of the original road.

Discussion.

Defendant’s authority for appropriating and occupying with its tracks a portion of the River Road is to be found in section 13 of the Act of Feb. 19, 1849, P. L. 85, as follows: “If any such railroad company shall find it necessary to change the site of any portion of any turnpike or public road, they shall cause the same to be reconstructed forthwith, at their own proper expense, on the most favorable location and in as perfect a manner as the original road.”

The right to determine whether a necessity for a change of site exists is lodged in the railroad company in the first instance, subject to review by the courts in event of abuse of such power: Pennsylvania R. R. Co.’s Appeal, 128 Pa. 509. As plaintiff’s proof did not challenge the proper exercise of this power, it follows that plaintiff’s prayer that defendant be required to remove its tracks from the original site of the road must be refused.

The necessity for a change of location having been determined, and the defendant having undertaken to reconstruct the road occupied by it, the important question is whether the reconstruction was in compliance with the terms imposed by the statute.

One of those terms is that the road shall be constructed “on the most favorable location.” Whether the location selected is the most favorable is a public question, and due regard must be had for the interest of the public: Foley v. Beach Creek Ext. R. R. Co., 283 Pa. 588, 598. With this in mind, we have had no difficulty in finding that the new location selected was the most favorable. The former location was on top of the fiver bank, but so is the new. To locate the road on the opposite side of the railroad would necessitate two crossings of the railroad, which ordinarily are not in the public interest and are to be avoided when possible. Finally, the draft showing the old and new locations discloses that between the limits of change the new location is shorter than the old. Considered, therefore, from the aspect of site alone, and in the absence of any proof as to the locus of a better location, the new location is the most favorable.

Was the road reconstructed in as perfect a manner as the original road?

It is no longer open to question that when proceeding under authority of the Act of 1849, it is the duty of a railroad to furnish a reconstructed road of the same width as the original. As explained by Mr. Chief Justice Mitchell in Com. v. D., L. & W. R. R. Co., 215 Pa. 149, 153: “What the railroad company does under this authority is not to give the Commonwealth a new road with a new title and new attributes, but the old road reconstructed. The site is necessarily changed, but in all other respects it is to be ‘the same,’ to wit, expressly upon the most favorable location and in as perfect a manner as the original road, and by necessary implication of the same other qualities, including width, actual and potential.”

In Sugar Creek Township v. Erie Ry. Co., 242 Pa. 573, the traveled portion of the former road was from 15 feet to 22 feet in width, although the authorized width was 33 feet. The action was by the township to recover the cost of reconstruction. In awarding a new trial and stating the legal principles which should govern such new trial, the Supreme Court said (pages 577 and 578): “Any expense, therefore, necessarily incurred in widening the road to its original width of 33 feet, outside of the right of way of the railroad, would be recoverable in this action. The evidence should have been limited to that alone. As is pointed out in the decision in Com. v. D., L. & W. R. R. Co., 215 Pa. 149, the township had the right to require the railroad to reconstruct a new road 33 feet wide. ... If the defendant company stands upon its strict legal rights as to the expenditures alfeady made by the township, the latter can, and naturally will, insist upon its right to compel the construction of a new road of the full legal width.”

The defendant company recognizes its obligation to furnish a new location of the same width as the old, but contends it is not required to furnish a graded roadway of greater width than the traveled portion of the original road. This contention does not give full effect to the statutory requirement as to perfection of manner of reconstruction. Even though defendant has set apart a new location of the full legal width, yet if but one-half of that location accommodates a level roadway, while the remainder consists of a 30-degree slope extending to the river’s edge, with inadequate support and subject constantly to ravage and erosion by action of the river, it must be obvious that the reconstruction is not in accordance with the statute.

The intention of the legislature was to prevent any new or additional burden from being imposed upon the public by reason of the reconstruction. If, in order to make full use of the reconstructed road, moneys must be expended which a like use of the original road would not have necessitated, the burden of such expenditure must fall on the railroad and not on the public: Pennsylvania R. R. Co. v. Irwin Borough, 85 Pa. 336; Newlin Township v. Davis, 77 Pa. 317. Since but little expense would have been required to open and grade the original road to its full width, while a very large sum will be required to accomplish the same result on the new location, we conclude that defendant has not as yet discharged its obligation.

It is further contended by defendant that the road was reconstructed in accordance with an agreement between the borough and the railroad company, and that, having since accepted and adopted the new road, the borough cannot now complain, especially as twenty-two years have elapsed since the road was reconstructed.

The statutory duty to reconstruct is a continuing obligation, which is in no wise lessened by lapse of time: Com. v. Railway Co., 14 Pa. Superior Ct. 336. Nor can the public right to faithful and substantial performance of that obligation be bargained away by the officials of plaintiff borough: Snow v. Deerfield Township, 78 Pa. 181. At most, defendant’s evidence as to its dealings with the borough establishes, not an agreement between the parties, but mere knowledge by the borough council of the intent to change, with subsequent acquiescence. This is wholly insufficient to bar the plaintiff or absolve the defendant.

The court proceedings of 1887 establish the legal width of the portion of road south of Still House Run as 33 feet. There are no such proceedings fixing the width of the part extending northwardly from that run. We were, therefore, obliged to ascertain the width from such verbal testimony as was offered. It was shown that defendant had made two surveys of the original road in 1897, in both of which surveys measurements had been taken of what defendant claimed was the width of the road. The testimony of defendant’s engineer, Thornton, discloses that what the surveying parties did was to measure the level section on which the public did or could travel, but that when a “break” or “variation” was found by which the surface of the ground rose or fell three or four inches from the level, the space which lay beyond such break was not included in the width of the road. This was a most arbitrary method of ascertaining the width of a road, and that common sense was not exercised, is shown by the results, for the width of the road as thus determined was asserted by defendant’s engineers to be as little as 8, 10, 11 and 12 feet at various points. The majority of these narrow widths appear to have been measured on the southerly end of the road, where the legal width, as shown by the court records, in fact was 33 feet.

The width of road, determined by such method of measurement, could not be found as a fact, in the face of credible and uneontradicted testimony that the road had been open and in general public use for more than forty-five years and that two teams could and did pass on it “with plenty of room,” except for one or two narrow portions of about 75 feet in length.

The great weight of the evidence was with the plaintiff, to the effect that the road had been the usual country road, with the witnesses’ estimates of its width, varying from 25 to 35 feet. From an analysis and study of this testimony, we have concluded that the northerly end of the road, as it existed in 1901, was 25 feet in width, and we have so found as a fact.

Conclusions of law.

1. Defendant’s occupancy of the River Road, as it existed in 1901, was lawful, and it cannot now be compelled to remove its tracks from said road.

2. Having found it necessary to change the site of said River Road, it became the duty of defendant, forthwith and at its own expense, to reconstruct the same on the most favorable location and in as perfect a manner as the original road, which included the obligation to reconstruct the same to its original width

3. The reconstruction of the road, as made by defendant, to a width of but 161 feet and without adequate support for the fill on which [it was] laid, was a reconstruction on the most favorable location, but was not in as perfect a manner as the original road.

4. The aforesaid obligation to reconstruct said road is a continuing obligation and is presently enforceable, notwithstanding the lapse of time since the site of the road was changed.

5. Plaintiff did not forfeit its right to relief by its knowledge of the proposed changes and its failure to object to same before or at the time they were made.

6. Defendant should be required to complete the reconstruction of said road by widening and opening the present roadway to the original width of the road and by constructing such wall or other support as will afford permanent protection to the roadway against impairment by the action of the river.

Decree nisi.

And now, to wit, June 2, 1928, upon consideration of the foregoing case, it Is ordered, adjudged and decreed nisi as follows:

1. That defendant, within a period of eight months from the date of this decree, complete the reconstruction of the River Road through the Borough of Port Vue, by widening and opening to a width of 33 feet the present roadway constructed by defendant south of Still House Run, and by widening and opening to a width of 25 feet the present roadway constructed by defendant north of Still House Run, and by constructing such wall or other support as will afford permanent protection to such reconstructed roadway against impairment by the action of the Youghiogheny River.

2. That defendant pay the costs of this proceeding.


author: Stewart, P. J.,

text:
    New Jersey Interurban Coach Co. et al. v. City of Easton et al.

      Aaron Goldsmith, for plaintiffs; Herbert F. Laub, for defendants.
    March 12, 1928.
   Stewart, P. J.,

The plaintiffs filed a bill in equity and we granted a preliminary injunction. Upon the day fixed for a hearing the defendants came into court and agreed upon the record that the case should be disposed of as upon final hearing, without the filing of an answer and without the taking of testimony. The case was thoroughly argued by the learned counsel representing the parties, and while the briefs filed are very elaborate, in our judgment, the case is in a very narrow compass. The bill set forth in ■effect that an ordinance was adopted by the City of Easton on July 18, 1919. The title of the ordinance is “An ordinance regulating traffic upon the streets and highways of the City of Easton, and declaring certain acts pertaining thereto nuisances, and prescribing the penalties therefor.” The 19th section, so far as it applies to this case, is as follows: “The Department of Public Affairs is hereby authorized to make any such additional rules or regulations as emergencies or extraordinary conditions may require or warrant.” The bill also sets forth that, in accordance with the provisions of above ordinance and under the authority just quoted, the Department of Public Affairs promulgated certain rules which are to be effective on or after March 1, 1928. Then follow certain routes over certain streets of the city applicable to the Philadelphia Rapid Transit Line, the Waer Bus Company, Inc., the Easton and Martin’s Creek Bus Line and the New Jersey Interurban Bus Company, Inter-County Motor Company. These traffic rules or regulations, assigning special streets to the plaintiffs, were especially objected to and constitute the main • ground of complaint. Then there are certain other provisions as follows:

“1. There will be no other interurban bus stops in the city limits.” That provision plaintiffs object to.

“2. All busses at terminal stops must park with both wheels parallel to the curb, and as close to it as the conformation admits.” That provision plaintiffs do not object to.

“3. No interurban busses permitted more than fifteen minutes at terminal stops for loading and unloading.” That provision plaintiffs object to, but they protest that they have never violated it.

“4. Unless busses at terminal stops immediately unload, load and proceed, motors must be shut off — except in cold weather, when it is necessary to keep, motor warmed by running of engine.” That provision plaintiffs do not object to.

“5. When extra busses are necessary, or special busses are used to and from terminal stops, they shall not be brought to terminal stops more than fifteen minutes before starting time. Busses arriving at long periods before starting time must be kept at some remote parking place for the time of dead-service, unless special arrangement is otherwise made.” That provision plaintiffs object to, but they protest that they have never violated it.

“6. Special chartered busses of lines in interurban service, other than those assigned to terminal stops, will load and unload on North Second Street in front of school grounds, unless special arrangements are previously made for hotel or other loading and unloading.” That provision plaintiffs do not object to.

The above traffic rules or regulations were signed by “S. S. Horn, Mayor, Superintendent Department of Public Affairs.”

It is scarcely necessary to discuss the right of a city of the third class to accomplish the same thing that was intended to be accomplished by the traffic rules or regulations prior to Jan. 1, 1928, provided it adopted an ordinance confining companies like the plaintiffs to certain streets. In Setzer v. City of Pottsville, 73 Pa. Superior Ct. 573, the syllabus is: “The Act of July 26, 1913, P. L. 1374 (Public Service. Company Law), and the Act of June 1, 1915, P. L. 685, giving to cities the power to regulate and license certain motor-vehicles, are not repugnant or inconsistent. The provisions of the two acts,, so far as they relate to the same subject, are not irreconcilable, and there is no express repeal in the latter act. An ordinance passed under the provisions, of the Act of Jqne 1, 1915, P. L. 685, designating certain streets on which interurban busses should be operated, and forbidding such operation upon other streets of the city, is not an unreasonable exercise of the power conferred in that act, nor does it conflict with the provisions of the Public Service Company Law.” To the same effect, see Collins et al. v. Public Service Commission, 84 Pa. Superior Ct. 58, bottom of page 62. Of course, the decisions in those cases did not pass upon the right of a city to delegate its functions to a superintendent of a department of public affairs. To apply the principle to the present case, it would have to be held that if the city acted in a proper way, it had the right to confine motor-busses to the use of certain streets in the city. However, the situation is completely changed by the passage of “The Vehicle Code,” which was approved May 11, 1927, P. L. 886. That act repeals specifically the Acts of June 12, 1919, P. L. 451, June 30, 1919, P. L. 678, last amended by Act of April 27, 1925, P. L. 254; May 24, 1923, P. L. 425, as amended by Act of April 27, 1925, P. L. 286; March 31, 1921, P. L. 78, May 21, 1923, P. L. 291, March 23, 1921, P. L. 42, as amended by Act of June 14, 1923, P. L. 775. Then, in order that the destruction might be complete, it contains the general-clause: “And all other acts or parts of acts inconsistent herewith shall be and the same are hereby repealed.” It went into effect Jan. 1, 1928. The specific provisions of “The Vehicle Code” applicable to this case are the following sections: Sections 1033 and 1035, which are as follows:

“Local authorities, except as expressly authorized by this act, shall have no power or authority to alter any speed limitations declared in this act, or to enact or enforce any ordinance, rule or regulation contrary to the provisions of this act, except that local authorities shall have power to provide by ordinance for the regulation of traffic, by means of traffic officers or semaphores or other signaling devices, on any portion of the highway where traffic is heavy or continuous, and may regulate or prohibit, parking, or prohibit other than one-way traffic, upon certain highways, and may regulate the use of the highways by processions or assemblages.”

“Operators of motor-vehicles shall have the same right upon the highways as the drivers of other vehicles, and no highway, open to other vehicles, shall be closed to motor-vehicles.” Vehicles, motor-vehicles and motor-omnibusses are all defined in the beginning of the act. "

Sections 1033 and 1035 are as broad sis it is possible to make them in declarations of the rights of operators on streets and as to the power of local authorities to legislate affecting the use of the highways. It is true that the Clark Act and the amendments to it are broad enough to confer authority on cities of the third class, but there is nothing in' the conference of power on any city of the third class that would prevent the taking away of that same power. In Com. v. Moir, 199 Pa. 534, the' syllabus is: “Municipal corporations are agents of the State, invested with certain subordinate governmental functions for reasons of convenience and public policy. They are created, governed and the extent of their powers determined by the legislature, and subject to change, repeal or total abolition at its will. They have no vested rights in their offices, their charters, their corporate powers, or even their corporate existence. The mere fact that the action of the State towards its municipal agents may be unwise, unjust, oppressive or violative of the natural or political rights of their citizens is not one which can be made the basis of action by the judiciary, nor are the motives of the legislators, real or supposed, in enacting legislation as to municipal corporations, open to judicial inquiry or consideration.” In Kraus v. Philadelphia, 265 Pa. 425, the syllabus is: “The legislature may at any time modify or abolish the powers vested by it in the municipalities of the State. Unfinished proceedings of a municipality ordinarily fall with the repeal of the laws under which they were begun. . . . Where the legislature declares that it shall be unlawful thereafter for a municipality to do a given thing, it cannot thereafter be done, no matter how far the proceedings leading up thereto had advanced when the act went into effect.” That an ordinance of a city may be blotted out by subsequent legislation is, therefore, apparent. That it was the legislative intent to do the very thing with respect to the routing of certain streets, as was done in the traffic rules or regulations cited above, appears from the Act of April 27, 1925, P. L. 254, which amended the 28th section of the Act of June 30, 1919, P. L. 678. The original Act of 1919 provided as follows: “Provided, that any city may regulate the transportation by motor-vehicles of passengers for pay within the limits of such city or from points in the city to points beyond the city limits, and make and enforce regulations for the operation of such vehicles, not inconsistent with this act, and designate certain streets upon which such vehicles may be operated.” The amended act retained the same provisions, and referred to “rules or regulations made by the police authorities under the authority thereof.” The fact that the present ordinance was adopted in 1919 makes no difference. If there was nothing else in the way, the traffic rules or regulations could be enforced under the provisions of the above Acts of 1919 and 1925. However, when the Vehicle Code of 1927 was passed, the legislative thought, whether as a result of experience or of deliberation, changed that act, deliberately eliminating the above, and used the comprehensive terms expressed in sections 1033 and 1035, and the legislature went further and, as we showed above, specifically repealed the Act of 1919 and also the Act of 1925, supra. A declaration of legislative intent could not be plainer, whatever the reason may have been. That it had authority to do so is unquestioned. The reasoning applicable to the present case is illustrated by a consideration of the opinion of Judge Keller in White Line Taxi and Transfer Co. v. South Brownsville Borough, 91 Pa. Superior Ct. 46, which case was affirmed in 291 Pa. 478, and it will be noted that this latter case overrules Applewold Borough v. Dosch, 239 Pa. 479, which was a reversal of the same case in 51 Pa. Superior Ct. 152. The Vehicle Code of 1927, therefore, repeals all motor acts previously enacted, and it prevents any municipality from enacting any ordinance inconsistent with its provisions, and the traffic rules or regulations in Exhibit “B,” therefore, fall. In our view, a very serious question would arise: Conceding that the Department of Public Affairs had authority to make rules or regulations “as emergencies or extraordinary conditions may require or warrant,” are the rules or regulations above given justified under the circumstances of this case? Emergencies or extraordinary conditions are well understood. These rules, on their face, are not enacted for emergencies or extraordinary conditions. It does not appear when they were promulgated, but they were to go into effect on or after March 1, 1928, and were intended to be in force until changed or revoked. In other words, they were permanent rules or regulations, and the ordinance gave no such power to the Department of Public Affairs. When the clause just referred to is considered in connection with the first clause of the section, it will be seen that the subject-matter of the section is the parking of cars, which is prohibited within safety zones. Then the section goes on to say that the Department of Public Affairs is hereby authorized to make any such additional rules, &c. The plain construction of the section as a whole limits the authority of the department to additional rules on the subject of parking within safety zones. The interpretation adopted in the present instance is entirely too broad, and when the department undertook to define bus routes, &c., even section 19 will not support it.

It is not necessary to pass on the question whether the City of Easton has power to delegate its authority to the Department of Public Affairs. It was expressly stated upon the argument that there was no suggestion that the mayor had acted from prejudice or animosity. It was conceded that he was trying to extricate the city from a difficult position caused by congestion on the public highways. Nor do we think that the ordinance is discriminatory. The general subject of discriminatory ordinances is thoroughly discussed by Mr. Justice Kephart in the late case of White’s Appeal, 287 Pa. 259, and by Mr. Justice Frazer in the late case of Bothwell v. York City, 291 Pa. 363. In the latter case, the syllabus is: “Discriminations open to objection are those where persons engaged in the same business are subjected to different restrictions or held entitled to different privileges under the same conditions.” In the present case, there is nothing in the bill which would show how the plaintiffs are discriminated against. The mere fact that the Philadelphia Rapid Transit Line has a different route from those assigned to the plaintiffs cannot be said to be a discrimination. We think, as we stated above, that the two cases first cited would compel us to sustain the ordinance and regulations if limited to the plain purpose of section 19 were it not for the Vehicle Code of 1927. The learned counsel for the defendants insists that this case is ruled by City of Easton v. Miller, 265 Pa. 25. We do not think so. That case was cited in Valley Railways v. Harrisburg et al., 280 Pa. 385, a case utterly unlike the present case, but Mr. Justice Walling summed up what was held in the Miller case as follows: “That case did not attempt to exclude the railway company from any part of its chartered route, but merely required the railway company, in place of passing around the circle at the centre of the city to the left, to follow the current of traffic and pass around to the right — a reasonable regulation.” Nor is there anything in Jitney Bus Ass’n of Wilkes-Barre v. City of Wilkes-Barre, 256 Pa. 462, that throws light on the present question. In that case, “the provisions of the ordinance (1) requiring the operators of jitneys to carry policemen and firemen free under certain conditions; (2) restricting the sureties upon a bond to surety companies; and (3) requiring that the bond should be a continuing liability, notwithstanding recovery thereon, are unreasonable and unenforceable.” The discussion was interesting,.but it is not applicable to the present case.

The prayer for relief, considered with respect to the position of the plaintiffs, as stated upon the argument but not made a matter of record, should be granted, as tested by the general provisions of sections 1033 and 1035, quoted swpra, even though we have decided herein that the ordinance does not apply and that the interpretation put upon section 19 is too broad. That is to say, this being an equitable proceeding, we have a right to assume that the city may hereafter pass an ordinance that will conform to the powers granted by section 1033. They are (1) the regulation of traffic by means of traffic officers or semaphores or other signaling devices; ... (2) may regulate or prohibit parking; (3) [may] prohibit other than one-way traffic upon certain highways; (4) may regulate the use of the highways by processions or assemblages. The plaintiffs object to the first provision of Exhibit “B,” as follows: “There will be no interurban bus stops in the city limits.” That provision could not be sustained. Section 1035 gives the plaintiffs the same rights on the highways as the drivers of other vehicles. They also object to provision No. 3, as follows: “No interurban busses permitted more than fifteen minutes at terminal stops for loading and unloading.” That provision means that plaintiffs’ vehicles cannot be parked for longer than fifteen minutes. It could be sustained under section 1033, and will not be covered in the decree. The same thing applies to provision No. 5.

'And' now, March 12, 1928, this cause came on to be heard at this term by the court, and upon consideration thereof it is ordered, adjudged and decreed that the injunction heretofore granted be made permanent, and a perpetual injunction be issued to the City of Easton and Samuel S. Horn, Mayor, commanding and restraining them and each of them from interfering with, limiting or prohibiting the plaintiffs, and each of them, from using the streets and highways of the City of Easton, which are open and traveled upon by vehicles, and from limiting or designating the places where the plaintiffs’ vehicles may stop for the purpose of loading and unloading passengers in the City of Easton.

It is further ordered and decreed that the defendants shall pay the costs of this proceeding. The prothonotary will enter this decree “nisi” and give notice of same to the parties or their counsel of record, and if no exceptions are filed within ten days after notice, this decree shall be entered by him as a final decree as of course.

From Henry D. Maxwell, Easton, Pa.


author: Group, J.,

text:
    Morrison v. Herzon.

      Robert Ruppin and Charles G. Baker, for rule; Charles W. Eaby, contra.
    March 31, 1928.
   Group, J.,

This is a rule for judgment for want of a sufficient affidavit of defense. The action is brought on a building contract, wherein the plaintiff agreed to erect, furnishing all the work and material therefor, several houses on the south side of West Vine Street, in the City of Lancaster. The agreement for the erection of said buildings was signed by both parties to the suit, and it is attached to and marked Exhibit “A” in plaintiff's statement.

The defendant, on Nov. 16, 1927, filed an affidavit of defense, after which, on Dec. 9, 1927, a .rule for judgment for want of a sufficient affidavit of defense was taken. On Jan. 5, 1928, the defendant filed a supplemental affidavit of defense, in which he set up new matter, and to which plaintiff has not replied.

In the brief filed, plaintiff contends that the supplemental affidavit of defense was entered without leave of court, and is, therefore, void.

He stressed this view on the argument of the case, and filed a long, laborious brief as to why judgment should be entered on his rule.

A careful examination of all the papers filed in the case convinces the court that an entry of judgment on this rule would be an injustice. If the defendant did not have permission from the court to file his supplemental affidavit of defense, we will grant him such permission now, on the filing of this opinion, and keep the matter open in the meantime.

The allegations in the statement and the answers in the affidavit of defense convinces us that there are substantial questions of fact to be decided between the two parties, and it is necessary to submit those facts to a jury, so that substantial justice may be done between the parties to the case.

We find that section 17 of the Practice Act of May 14, 1915, P. L. 483, provides as follows: “The plaintiff may take a rule for judgment for want of a sufficient affidavit of defense to the whole or any part of his claim, and the Court shall enter judgment or discharge the rule as justice may require.”

We feel here that justice requires that this rule be discharged, and we, therefore, do discharge the rule.

From George Ross Eshleman, Lancaster, Pa.


author: Martin and Gray, JJ.,

text:
    McGovern v. Armstrong et al.

      Ralph H. Frank and Edward O. Spotts, Jr., for plaintiff.
    No appearance for defendants.
    April 28, 1928.
   Martin and Gray, JJ.,

This is an application for a preliminary injunction to restrain Joseph G. Armstrong, one of the County Commissioners of Allegheny County, from acting as a member of the return board for computing and canvassing the returns of the primary election held on April 24, 1928. Laying aside the objection that equity has no jurisdiction, we have considered the case upon the merits.

The contention of the plaintiff, one of the County Commissioners of Allegheny County, is that Joseph G. Armstrong, another commissioner of the county; is not qualified to act because he was a candidate for State Committeeman of the Republican Party in the Thirty-eighth Senatorial District. The plaintiff relies upon the Act of June 29, 1923, P. L. 920, which amended section 14 of the Act of July 12, 1913, P. L. 719. So far as material to this case, the act provides: “. . . if any of the county commissioners of any county shall be a candidate for any nomination at any primary he shall not act as a member of the return board for computing and canvassing any returns of such primary, but the other two commissioners, if both are qualified, shall act. . . .”

We cannot agree with plaintiff’s contention. The primary act deals with two distinct matters, the nomination of candidates of political parties for certain public offices and the election of certain party officers, including State committeemen. Throughout the act there is a clear distinction made by the legislature between these two different subject-matters. This distinction is expressed in the title of the act, is found in every section of the act which deals with either matter, and was clearly recognized by the legislature. If the legislature had intended to disqualify a county commissioner from acting as a member of the return board because he was a candidate for election to an office of his party at a primary, it could have expressed such intention in simple language. The omission of the words “for any nomination” immediately succeeding the word “candidate” would have expressed such intention, or the insertion of the words “or election” after the words “for any nomination” would likewise have expressed the intention. We have no right to read into the statute words which are not there or take out words which are there. The matter is entirely statutory and the general principles of policy are for the legislature and not for the court. It may well be that the same reason which moved the legislature to prevent a county commissioner from acting as a member of the return board when he is a candidate for nomination at a primary should have influenced it to disqualify him if he was a candidate for election to an office in his party. But the legislature having made the clear distinction between nomination as a candidate for a public office and election to a party office made no such disqualification in the case of a candidate for election to an office of a party. Mr. Armstrong was not a candidate for a nomination for a public office; he was simply a candidate for election as a State committeeman of the Republican Party.

It has been urged upon us that if the primary acts do not cover the situation, the matter is governed by the general election law and that the general election law prevents a county commissioner from acting as a member of the return board in case he is a canddiate.

Com. ex rel. v. Lenhart, 241 Pa. 129, rules this question otherwise.

The preliminary injunction is refused.

Prom 'William J. Aiken, Pittsburgh, Pa.


text:
    Du Bois Lumber and Coal Company v. Getchell.

      Robert G. Hendricks, for plaintiff; Mark Thatcher, for defendant.
    May 7, 1928.
   Ryan, P. J.,

The plaintiff obtained a rule to show cause why the title to this cause should not be amended by substituting as plaintiff the name of “Du Bois Lumber & Coal Company, a Corporation,” for “Walter L. Du Bois, trading as Du Bois Lumber & Coal Company.” The Act of May 4, 1852, § 2, P. L. 574, provides that “all actions pending or hereafter to be brought in the several courts of this Commonwealth, and in all cases of judgment entered by confession, the said courts shall have power, in any stage of the proceedings, to permit amendments by changing or adding the name or names of any party, plaintiff or defendant, whenever it shall appear to them that a mistake or omission has been made in the name or names of any such party.” The instant case is within the provisions of this act. The suit was; clearly intended to be brought by the Du Bois Lumber & Coal Company, but was brought in the name of its president, trading as such company. The fact of its incorporation was either inadvertently overlooked or not known. The cases cited by the defendant are those in which the names of new parties defendant were sought to be brought upon the record, which was not allowed. The affidavit of defense raising questions of law sets forth facts that do not appear by the statement of claim. It avers the filing of a mechanic’s lien for the claim sued upon and a failure to register the fictitious name in which suit was brought. This makes it a “speaking demurrer.” A statutory demurrer* only disposes of questions arising out of the sufficiency of the statement to sustain the action. Judgment will not be entered on a point of law raised by affidavit where the material facts on which the defendant relies to sustain the question of law do not appear on the face of the statement: Wanamaker’s Administrator v. Beamesderfer, 6 D. & C. 455.

And now, to wit, May 7, 1928, the amendment is allowed and the statutory demurrer is overruled, with leave to the defendant to file a supplemental affidavit of defense within fifteen days. From Calvin S. Boyer, Doylestown, Pa.