Hottenstein v. Johnson

Citations

• 44 Pa. Super. 562
• 1910 Pa. Super. LEXIS 220

Syllabus

<p>Affidavit of defense — Practice, C. P. — Pleading—Statement of claim— Chech.</p> <p>1. Where an affidavit of defense has been filed to the merits and the court below has made absolute a rule for judgment for want of a sufficient affidavit of defense, the defendant cannot on an appeal from the judgment of the court below allege for the first time that the statement of claim is insufficient.</p> <p>2. In an action founded on a check the plaintiff averred in his statement of claim that the defendant forwarded the check to him with directions that he should pay the proceeds thereof to a third person, and that immediately upon receipt of the check he did pay over the amount of it to the person designated. The defendant in his affidavit of defense denied “that he made any such request to plaintiff, or that the plaintiff expended any of said moneys as he had alleged he did.” Held, that the affidavit of defense was sufficient.</p>