Susquehanna Mutual Fire Insurance v. Clinger

Citations

• 10 Pa. Super. 92
• 1899 Pa. Super. LEXIS 246

Syllabus

<p>Practice, G. P. — Effect of defective statement and affidavit on the merits —Motion for non pros.</p> <p>Where the record disclosed a statement of claim filed and an affidavit to the merits and a rule to plead filed some ten years later, a rule of court allowing a non pros, to be entered in any action where a declaration has not been filed within two years from the first day of the term to which the action was brought, does not apply. The fact that an amended statement was allowed to be filed does not affect the situation; if the original was defective the defendant could have tested its sufficiency, either by his affidavit or by demurrer. Such a question is not raised by a motion for a non pros, upon the ground that no statement at all had been filed.</p> <p>Laches in prosecuting action — Review—Discretion of court.</p> <p>There is no fixed rule as to the length of delay that will prevent plaintiff’s proceeding, after statement filed; it is a question of discretion controlled by the facts of the particular case, and the decision of the court below will not be reversed unless there is manifest abuse of discretion.</p> <p>Practice, G. P. — Amendment—Cause of action.</p> <p>So long as the breach of the same contract is alleged it is the same cause of action, even though in one instance it may be alleged to be a written contract and in another an oral contract, and to permit a plaintiff, under these circumstances, to amend his statement is not error. The proposed amendment does not introduce a new cause of action because it alleges a contract in writing, whilst the original statement filed alleged an oral contract. The test is, is the contract, for the breach of which suit is brought, the same; not, is the evidence of the contract the same.</p> <p>Charge of court — Fair and adequate statement of the issues sufficient.</p> <p>Where the contention was as to the personal liability of the defendant for certain premiums, and whether he or some one else withheld them, it