Wilkinson v. Brice

Citations

• 148 Pa. 153
• 23 A. 982
• 1892 Pa. LEXIS 931

Syllabus

<p>[Marked to be reported.]</p> <p>Mechanics' liens — Contract prohibiting filing of — Subcontractor.</p> <p>Where a contract provided that the contractor would not permit the filing of liens against the property, this contract was binding on a subcontractor.</p> <p>Schroeder v. Galland, 134 Pa. 277, followed.</p> <p>Affidavit of defence — Affidavit by counsel — Supplementary affidavit— Practice.</p> <p>An affidavit of defence to a mechanic’s lien was filed by the attorney for the owner, and averred that by the agreement between the contractor and the owner for the erection of the building it was expressly agreed that no lien should be entered against the building. A copy of the contract was attached. No reason was given in the affidavit for the failure of defendant to make the affidavit. Subsequently, however, the defendant filed an affidavit averring that at the time the first affidavit was filed she was without the state, and further that the affidavit filed by her counsel was correct. It was contended by plaintiff on motion for judgment for want •of a sufficient affidavit of defence that defendant’s affidavit was filed too late, under the rules of the court below:</p> <p>Held, 1. If the affidavit was improperly filed, plaintiff’s proper course was to move to have it taken off the file. No such motion having been made the Supreme Court will presume that what appears unchallenged upon the record was properly placed there.</p> <p>2. When there is anything upon the record at the time a motion is made for judgment for want of a sufficient affidavit of defence which shows for any reason that the plaintiff is not entitled to judgment, it is the duty of the court to deny the motion and send the case to a jury.</p>