Negligence
Suit.

Copenhaven et al. v City of Pittsburgh.

Death of Plaintiff- -Evidence as to Fall on Sidewalk-Non

A compulsory non-suit was properly granted in an action against a city for damages for personal injuries resulting from a fall on the sidewalk where some years after the bringing of the suit the plaintiff died and her administratrix was substituted. At the trial of the case no witness was produced who saw the accident. The daughter of the plaintiff testified that after her mother had been brought home, she went out on the street and saw the marks on the snow where her mother had fallen. This was not sufficient to take the case to the

jury.

Motion for New Trial.

County.

No. 297 July Term, 1917. C. P. Allegheny

R. P. & M. R. Marshall, for plaintiff.

C. A. O'Brien, City Solicitor, and T. M. Benner, Assistant City Solicitor, for defendant.

Before EVANS, BROWN and DREW, JJ.

EVANS, J., May 19, 1920.-The plaintiff alleged in her statement of claim that she was walking along Eloise Street, in the City of Pittsburgh, and stepped in a hole or depression in the street and was injured. Some years after the bringing of the suit the plaintiff died and her administratrix was substituted. At the trial of the case no witness was produced who saw the accident. The daughter of the plaintiff testified that after her mother had been brought home, she went out on the street: there was a slight skift of snow on the street at the time; that she followed her mother's tracks up the street and that she saw on the street where she had fallen, by the marks of her body on the street and the marks of her umbrella near her; that she saw the marks of her fall near a hole in the street and that she saw that the marks went into the hole. That was the testimony as to the circumstances of the accident. A motion for compulsory non-suit was allowed for the reason that there was not sufficient evidence from which the jury could find that the plaintiff was injured through stepping into any hole or depression on the public street, and we are of opinion that the nonsuit was properly granted.

Taking the most favorable inference that can be drawn, marks of the plaintiff's feet were found in this hole, but whether she had stepped into the hole before she fell, or whether she slipped and fell and her feet went into the hole afterwards, the jury would simply have to guess. There was snow on the ground and a person is liable to slip, particularly an old person such as this plaintiff, without stepping into a depression. We do not think that there was sufficient evidence here to justify the jury in finding that the cause of the accident was the stepping into a depression in the street. Motion ex parte plaintiff to take off judgment of compulsory non-suit is refused.

In re Bank Charter.

Application Advertisement Incorporators

Required.

Persons Applying · Notice

An application for a charter incorporating a state bank was refused where the advertisement named certain persons as the incorporators while the application in fact was made by other persons. This was misleading and did not comply with the law. A charter application for a state bank must be advertised three months not three weeks.

This Department is in receipt of your recent letter requesting an opinion as to whether the advertisement for the proposed Arcadia State Bank complies with the law.

This advertisement gives notice that an application will be made to the Governor, Attorney General and Commissioner of Banking "by O. S. Gorman, J. D. Dunlap, S. McMillen, E. J. Ferrier and G. W. McCullough" for the charter of an intended corporation, to be called the Arcadia State Bank.

The certificate of incorporation and the Articles of Association presented to the Banking Commissioner show that O. S. Gorman, Theo. Kharas, S. McMillen, E. J. Ferrier and G. W. McCullough are making application and have associated themselves together for the purpose of carrying on the banking business under this corporate name, so that the advertisement is misleading and untrue, in that it states that, together with the others named, J. D. Dunlap will make the application for this charter, whereas in his stead Theo. Kharas is making such application.

It has been the policy of the law to require thorough advertisement before the charter for a bank can be issued. Three weeks' advertisement is the usual time required for other corporations, but in the case of a charter for a bank the law requires an advertisement "in two newspapers printed in the county in which such corporate body is intended to locate, at least once a week for three months before such application shall be made."

So that it is the policy of the law that the community in which the intended bank is to be located should be thoroughly advised and have an opportunity to file any objection thereto.

In this instance the public were misled. It may be that there would be no objection to an application for a charter for the Arcadia State Bank, if made by the men who were advertised to make it. On the other hand, it may be that the community would object to the incorporation of such bank if the application were made by Theo. Kharas. It therefore follows that the advertisement is misleading and untrue, and the public have not been advised who the real applicants are. If no names had been given in this advertisement the public would have been put on notice and inquiry as to who the applicants were, and would not have been misled.

But when the application names the incorporators, and other persons in fact apply for the charter, the public has been misled.

I am, therefore, of opinion that this charter can not legally be granted, pursuant to the published notice that re-advertisement is necessary.

Very truly yours,

WM. M. HARGEST,

Deputy Attorney General.

Dean v Gerod.

Equity- - Jurisdiction - Fraudulent Lease- -Cancellation-
Accounting-Remedy at Law.

-Restitution and

A bill in equity for cancellation of a lease of plaintiff's land on ground of fraud will not be certified to the law side of the court merely because it incidentally prays for restitution of the land together with an accounting. The incidental questions of restoration and accounting, although proper matters for suit in ejectment, come within the jurisdiction of equity as incidental to the main question of specific relief by cancellation of the lease, as to which the remedy at law is inadequate.

Motion to Certify Issue to the Law Side of the Court. No. 13 January Term, 1920. C. P. Lackawanna County.

E. C. Amerman, for plaintiff.

Scragg & Scragg, for defendant.

NEWCOMB, J., April 22, 1920.—The cause is at issue on bill and answer in which defendant has raised the question of jurisdiction as provided by statute. Thereupon she now moves to have the issue certified over.

The fundamental thing in controversy is an indenture of lease purporting to demise plaintiff's land, with its improvements, to this defendant for a long term of years, by hand of an agent.

The transaction is disavowed by plaintiff, who attacks the lease as a rank fraud, and prays for cancellation. Incidentally restitution is prayed for, together with an accounting.

It is that part of the prayer which underlies this motion. It gives rise to the contention that the proceeding is merely an ejectment bill.

The fact that under present conditions the genuineness of the demise could be litigated in ejectment is not decisive of the question of jurisdiction. At its maximum it presents a case of concurrent jurisdiction so far as it goes. But it is plaintiff's right, if his proofs warrant it, to have cancellation. In that particular the inadequacy of his legal remedy is selfevident. If jurisdiction in respect to the specific relief draws into consideration the incidental question either of restoration or accounting, it is simply because equity has committed itself to the policy of finality in whatsoever it undertakes to deal with.

The demurrer is overruled and the motion to certify the issue for trial at law is denied.

Fuel City Manufacturing Co. v Waynesburg Products Co.

Judgments-Opening-Default of Affidavit of Defense-Vacation Agreements Among Attorneys-Practice Act of 1915.

Statutes of amendment are liberally construed to give effect to their clearly defined intent to prevent a defeat of justice, through a mere mistake as to parties or the form of action, so no error was committed where the amendment was allowed, changing the name of plaintiff corporation as well as the name of the State in which is was chartered.

Where judgment was entered in default of an affidavit of defense, the Court dismissed a rule to show cause why it should not be opened on the ground that defendant's attorney was absent on his vacation and had also misinterpreted the practice act of 1915. The practice act of 1915 is mandatory in its requirements that the affidavit of defense shall be filed within fifteen days after service of the statement.

Where the rules of Court require that all agreements of attorneys touching the business of the Court shall be in writing, otherwise they shall be considered of no validity and during vacation period judgment was entered by plaintiff for default of an affidavit of defense it could not be successfully contended by defendant on a rule to open the judgment that there was a tacit understanding between the members of the bar that judgments by default should not be entered in vacation time, where such contention was not sustained by anything on the record, nor by any understanding, either formal or tacit, among the members of the bar.

Petition and Rule to Open Judgment. Demurrer to Petition. No. 50 September Term, 1919. C. P. Greene County.

James J. Purman, for plaintiff.

Waychoff & Waychoff, for defendant.

RAY, P. J., May 24, 1920.-This matter is now before the court on demurrer to petition and rule to show cause why a judgment entered in an action of assumpsit, in default of an affidavit of defense, as provided by section 17, of the Practice Act of 1915, should not be opened and stricken from the record and the defendant let into a defense. All of the facts for our consideration are disclosed by the record.

The action was begun July 26, 1917, by the filing of a praecipe for a writ of summons, returnable on the first Monday of September, 1919, together with plaintiff's statement of claim. Both the writ of summons and the statement of claim were served personally on the treasurer of the defendant corporation on the day the suit was brought. On August 12, 1919, 17 days after service of the summons and statement, in default of an affidavit of defense, the plaintiff corporation, on praecipe filed, procured the entry-of judgment for the amount of its claim. The defendant corporation, on August 20, 1919, presented its petition to the Court setting forth certain facts, all of which, in disposing of the demurrer are to be regarded as true, whereupon it procured the pending rule to open the judgment. The principal facts on which the defendant relies in support of the rule to open, as gathered from the petition, from the oral argument and the written brief of its counsel, are, (1) that suit was brought and judgment entered against the "Waynesburg Products Company, a Corporation," whereas the correct name of the defendant is, "Waynesburg Products Corporation;" (2) that the defendant is described in the statement as a "New Jersey Corporation" whereas it is a "Delaware Corporation;" (3) that the judgment in default of an affidavit of defense, entered August 12, 1919, was entered while its attorney was absent from Waynesburg on his annual vacation, and during the time recognized by the court and the bar as vacation time; (4) that the defendant was ready and willing at all times to file an affidavit of defense prior to August 12, 1919, and would have done so but for the advice given by its attorney that

Fuel City Manufacturing Co. v Waynesburg Products Co.

it had until the first Monday of September, 1919, the return day of the writ, to do so.

Subsequent to the granting of the pending rule the plaintiff corporation, on October 28, 1919, moved the court to allow certain amendments of the record and pleadings. Upon hearing the court made an order directing that whereas the defendant corporation was named "Waynesburg Products Company, a corporation," the words "Company, a" should be stricken out, leaving it to read, "Waynesburg Products Corporation," and also that in the second paragraph of the statement the word "New Jersey" should be stricken out and the word "Delaware" substituted therefor. In allowing these amendments we are not satisfied any error was committed. Statutes of amendment are liberally construed to give effect to their clearly defined intent to prevent a defeat of justce, through a mere mistake as to parties or the form of action. The Act of April 16, 1846, P. L. 353 (1 Pur., page 311), provides: In all actions pending or hereafter to be brought, in the several courts of this Commonwealth, said Courts shall have power, in any stage of the proceeding, to permit amendments of the record, when it shall appear to them, by any sufficient evidence, that a mistake has been made in the christian or surname of any party, plaintiff or defendant."

Under this act of assembly it has been held that the name of a corporation defendant may be amended after judgment on an award: Marsh v Wilkesbarre, 1 Luz. L. Reg., 173; that an amendment in the defendant's christian name may be allowed after execution issued: Schwartz v Mauer, 2 W. N. C., 445; that the proof required is only to satisfy the conscience of the court and may be ex parte, or otherwise; Horbach v Knox, 6 Pa., 377; Wood v Philadelphia, 27 Pa., 502; that the mistake need not be proved by the attorney who made it; and that the act contains no restrictions as to the time of making the amendment; and that both the christian and surname of the party may be amended: Wood v Stevenson, 15 Pa., 21. In allowing the amendments in the case at bar no new party was introduced, and the cause of action was in no way modified or changed. No wrong was done the defendant thereby and he was deprived of no legal or equitable right. The plaintiff, on its application and showing, was clearly entitled to have the said amendments made; and, the granting of power to amend implies the duty to exercise it in a proper case: Wood v Philadelphia, 27 Pa., 502.

The petition to open the judgment was sworn to by H. B. Goodstein, a resident of the city of New York, and president of the defendant corporation. It does not allege the practice of any fraud by the defendant in taking judgment by default, or that the same was either irregularly or illegally entered. The notice to the defendant, required by section 10 of the Practice Act of 1915, P. L. 483, was indorsed on the statement, and also on the copy served on the defendant, and the judgment was taken in accordance with the provisions of section 17 of the said Practice Act. The defendant bases its failure to file an affidavit of defense, within the statutory period of 15 days after service of the statement, almost exclusively upon the fact, as it alleges, that it was wrongfully advised in the matter by its attorney. The defendant, on the date they were served upon it placed both writ of summons and the statement in the hands of its attorney, at Waynesburg, with instructions to take any and all necessary steps for its defense to the action. The president of the defendant corporation wrote its attorney from New York in relation to the matter, "requesting information and advice as to filing a defense according to the laws of the State of Pennsylvania and the rules of this court." In reply thereto the attorney, by letter, under date of August 5, 1919, ten days after the summons and statement had been placed in his hands, with instructions to prepare a defense, advised him that "the affidavit of defense must be filed on or before the first Monday of September," and