Weiler v. Weiss

Citations

• 25 Pa. Super. 247
• 1904 Pa. Super. LEXIS 50

Syllabus

<p>Practice, C. P. — Amendment—Demurrer.</p> <p>Where upon motion to strike off, or other proceeding having that object in view, the opposite party has been heard as to the propriety of the amendment, the fact that he did not have notice of the original application to amend will not, of itself, entitle him to a reversal of the judgment. The action of the court, in such case, in declining to strike off the amendment will be treated, on appeal, as equivalent to an allowance of the amendment, and will be judged of accordingly.</p> <p>At the trial of an action of assumpsit there was evidence that the defendant had received the personal property of his son, and in consideration thereof had agreed to pay a debt of his son to the plaintiff. The jury found for the plaintiffs. A motion for a new trial was made, and an examination of the statement showed that it did not contain an averment of liability on this ground. A new trial was granted, and plaintiffs then amended their statement so as to set forth the liability proved at the trial. The defendant demurred to the amended statement alleging that it set forth no cause of action, and was insufficient in law to maintain the action. The court overruled the demurrer, and entered judgment for plaintiffs without giving the defendant an opportunity to plead over. Held, that the court committed no error.</p>