Palethorp v. Schmidt

Citations

• 12 Pa. Super. 214
• 1900 Pa. Super. LEXIS 222

Syllabus

<p>Pleading — Demurrer—Apparent right, when not set up in pleading, not regarded.</p> <p>The court will not on demurrer look back into the record to adjudge in favor of an apparent right in the plaintiff unless the-plaintiff has himself put his action upon that ground.</p> <p>Landlord and tenant— Summary possession — Appeal from justice — Act of 1830 — Burden of proof — Cause of action.</p> <p>When a case comes to the common pleas on appeal from the judgment of the justice under the Act of April 3, 1830, P. L. 187, the burden of proof rests upon the plaintiff and he must be prepared to prove all the facts essential to the remedy invoked, namely, the demise; reservation of rent; failure to pay same; insufficiency of goods on premises, not exempt from levy; service of proper notice to quit and tenant’s failure to pay rent or to remove before inception of the proceedings. Proof of tenancy, rent reserved, amount in arrears, tenant’s failure to pay same after demand, without more, is not sufficient to entitle the landlord to recover in this proceeding.</p> <p>Pleading — Appeal from justice — Demurrer to statement — Omission of essential fads not cured by transcript.</p> <p>Where, on an appeal from a justice, plaintiff elects to file a statement and call for an affidavit of defense rather than to proceed with the transcript, a demurrer to the statement admits only the facts therein set forth; it cannot be held to have admitted essential facts omitted from the statement even though the transcript shows that they were averred before the magistrate.</p>