McGonnigle v. McGonnigle

Citations

• 5 Pa. Super. 168
• 1897 Pa. Super. LEXIS 210

Syllabus

<p>Actions — Contribution for payment of bond and mortgage — Cause of action.</p> <p>In ail action for contribution, not founded directly on either the bond or mortgage, but on a payment which satisfied both, the plaintiff is considered as standing in the creditor’s place and entitled to the benefit of all his rights and securities.</p> <p>Contribution — Plaintiff's statement — Cause of action — Practice, C. P.</p> <p>A good cause of action is set out in a suit for contribution where the statement shows, (1) that the indebtedness was secured primarily by the bond given by the mortgagors and wherein all were liable; (2) that the mortgage was given as further security for the same debt; (3) that the plaintiff, to save himself from loss, was forced to pay the whole amount secured by the mortgage, thus in effect paying the debt due from himself and his co-obligors on the bond; (I) that, by reason of having so paid out his money he is entitled to contribution from the defendant.</p> <p>Practice, C. P. — General demurrer to statement — Act of 1887.</p> <p>Where a statement, taken as a whole, shows a good cause of action, and the defendant, instead of demurring specially or objecting in some other allowable way, to a formal defect, rests his defense exclusively on other matters, he cannot be heard in the appellate court to object to the judgment for such a defect. This old and familiar principle was not abrogated by the Act of 1887, P. L. 271.</p> <p>Practice, C. P. — Statement—Neglect to set out copy of instrument— Waiver by defendant.</p> <p>The Act of May 25, 1887, P. L. 271, provides that the concise statement, required thereby, shall be accompanied by a copy of the instrument sued upon. This requirement is imperative if the defendant chooses to insist thereon ; but, if the statement, taken as a whole, shows a good cause of action, and if the defendant neglects to demur specially, and rests his defense wholly on other matters, he cannot be heard in the appellate court