Stockley v. McClurg , 14 Pa. Super. 629 ( 1900 )

Opinion by

Orlady, J.,

By a decree of the court of common pleas of Dauphin county, sitting in equity, the plaintiff was appointed receiver of the Peoples’ Mutual Live Stock Insurance Company of Pennsylvania and authorized to levy and collect assessments according to a schedule annexed, upon the outstanding policies which were in force on the dates of the losses, and to give notice thereof and collect the assessments by suits at law, etc.

This suit was brought against the defendants, who were policy holders in the said company, to recover the percentages assessed upon the policies held by them. An affidavit of defense was filed, in which a number of defenses to the action were set out, but all of which, save one, have been disposed of by this court in Stockley v. Hartley Brothers, 12 Pa. Superior Ct. 628. Attached to and made a part of the statement filed in the case, is a copy of the decree of the court of common pleas of Dauphin county, but the defense is not accompanied with a record of the proceedings in the Dauphin county court, and the appellant contends that this omission is fatal to the action. The question was raised in the affidavit of defense filed, but the learned court below did not consider that it was necessary to attach and make a part of the plaintiff’s statement the record of the proceedings in the court which resulted in the appointment of the receiver, and judgment was entered for want of a sufficient affidavit of defense.

By section 8 of the Act of May 25,1887, P. L. 271, it is provided : “ The plaintiff’s declaration in ... . the action of assumpsit .... shall consist of a concise statement of the plaintiff’s demand, as provided by the fifth section of the act of the twenty-first day of March, Anno Domini, one thousand eight hundred and six, which in the action of assumpsit, shall be accompanied by copies of all notes, contracts, book entries, or a particular reference to the records of any court, within the county in which the action.is brought, if any, upon which the plaintiff’s claim is founded, and a particular reference to such record of any deed or mortgage, or other instrument of writing recorded in such county, shall be sufficient in lieu of the copy thereof.”

The record upon which the action is founded is not a judgment recovered in another county or state against the defendant. While it is more accurate to use the word “ judgment ” as applied to courts of law, and “ decrees ” as applied to courts of equity, the former term is now used in the larger sense to include both, and in that sense both are included by the language of the act of 1887. The decree in that proceeding provides: “ That this decree shall not be construed to prevent any individual member from setting up any defense he may have to the collection of the same,” etc. This proviso was held by this court in Stockley v. Hartley Brothers, 12 Pa. Superior Ct. 628, to relate “ to such defenses as are peculiar to the member and are based on individual ground.” In the present ease there is no denial of the cause of action, or of the jurisdiction of the court, either over the subject-matter or over the person of the defendant. Nor is there any denial of the plaintiff’s identity, or that there was a valid hearing and a proper decree of the court of Dauphin county, as the case was before it at the time the decree was entered. In addition, it is to be presumed that the Dauphin county court has exercised jurisdiction legally. A contrary presumption would necessarily imply usurpation on the part of the court: Mink v. Shaffer, 124 Pa. 280.

The only question presented is the sufficiency of the statement. In Campbell v. Railway Co., 137 Pa. 574, in which the action of assumpsit was founded upon a decree of the circuit court of the United States, Western District of Pennsylvania, sitting in equity, and a judgment for want of a sufficient affidavit of defense was entered by the court below, our Supreme Court, by Mr. Justice Mitchell, said: “The plaintiff’s statement is defective in not exhibiting the full record of the suit in the circuit court of the United States, on which the right to recover against the present defendant depends. The procedure act of 1897, in express terms, requires the statement to be accompanied by all copies of all notes, contracts, etc., and the excepted cases where ‘ particular reference? to records is sufficient, are confined to records in the county where suit is brought.” The judgment was reversed for additional reasons given in the opinion, but the result would have been the same for the reason first given.

In Bank v. Crosby, 179 Pa. 63, the action was a foreign attachment, founded upon a judgment of the circuit court of Douglass county, Nebraska, and, for want of a sufficient affidavit of defense, a judgment which alleged an insufficient record was finally entered by the court below. The ■ Supreme Court held: “The record of the foreign attachment on which suit was brought is certified in strict accordance with the act of Congress. This is sufficient to make it the basis of the action. The foreign judgment, and not the note referred to, is the foundation of the suit, and hence it was unnecessary that the note should be incorporated in the plaintiff’s statement of claim. The refusal of the court to quash the attachment is not reviewable. It is not necessary that plaintiff’s statement should set out all the jurisdictional facts. This may be required in an affidavit to show cause of action, but the absence of such facts from the statement is not alone sufficient to prevent judgment for want of a sufficient affidavit of defense, in which the existence of such facts is not denied.”

The merits of the defendant’s case have been disposed of in Stockley v. Hartley Brothers, supra, and in Stockley v. Riebenach, 12 Pa. Superior Ct. 169. The main requirement of the statement under the act of 1887 is to secure to the defendant clear and exact information as to what is claimed of him: Smith, Kline & French Co. v. Smith, 166 Pa. 563. The spirit of the act plainly requires that every contract or agreement upon which the claim in any manner depends, even if in parol, shall be averred in the statement. . . . Accuracy and precision have no terrors except for the careless and incompetent, and the act of 1887 was not intended to do away with them. As to all matters of substance, completeness, accuracy, and precision are as necessary now to a statement as they were before to a declaration in the settled and time-honored forms: Fritz v. Hathaway, 135 Pa. 274. The plaintiff’s statement is defective and insufficient in that it is not accompanied by a full copy of the record of the Dauphin county court. The decree was only a part of the whole record, which is a statutory requisite to establish the plaintiff’s claim, and a copy of the whole record should accompany the statement in order to comply with the provisions of the act of 1887.

The judgment is reversed and a procedendo awarded.

Bravee, J., dissents.