Orphans' Court of Denango County

Bleakley's Estate.

Witnesses-Depositions-Orphans' Court Act of June 7, 1917.

An appellant from the decree of the register of wills admitting to probate a writing purporting to be the last will and testament of a decedent is a witness whose testimony may be taken by commission or deposition under section 20, paragraphs (b) 2 and 3, of the Orphans' Court Act of June 7, 1917, P. L. 363.

Rule to show cause why a commission should not issue to take testimony of appellant from decree of register admitting to probate a writing purporting to be the last will and testament of decedent.

August Term, 1917, No. 1.

E. W. Criswell and Trax & Parker, for appellant and rule.

A. B. Jobson, contra.

January 13, 1919. Opinion by CRISWELL, P. J.

Section 20, paragraph (b) 2, of the Orphans' Court Act of June 7, 1917, P. L. 363, provides that "every Orphans' Court of this Commonwealth shall have power to make rules regulating the taking of depositions of aged, infirm and going witnesses, and the issuance and execution of commissions to take testimony and letters rogatory.'

"The Commission appointed to Codify and Revise the Law of Decedents' Estates" note in their report that "this cause is new but declaratory of the present law." The subject was covered in substance by the 8th section of the Act of May 23, 1887, P. L. 158, relating to the competency of witnesses, which provides that "in any civil proceeding the testimony of any competent witness may be taken by commission or deposition in accordance with the laws of this Commonwealth and the rules of the proper court." Various decisions are found under this act which may be regarded as authority in construing the Act of

1917.

In the case of Gray v. Braden, 13 Dist. R. 481, Judge McIlvaine quashed the rule for a commission to take the testimony of the plaintiff in the action, which was entered upon præcipe of counsel, unsupported by any affidavit or other proof of reasons therefor, and indicated that, under the Act of 1887, the defendant had a right to insist upon the presence of the plaintiff at the trial for cross-examination. But Judge Endlich, in Cunnius v. Reading School District, 25 Pa. C. C. Reps. 17, where the plaintiff resided in California, regards the act as bearing a different construction, and states: "There is no rule of law which requires a party to a civil proceeding to be present at the trial thereof. As a witness, such party seems clearly comprehended by section 8 of the Act of May 23, 1887, P. L. 158, which declares that the testimony of any competent witness may be taken by commission or deposition." In this case the testimony of the plaintiff was objected to as secondary evidence, and the objection was overruled and the evidence was received. The like conclusion is reached by Martin, J., in Sims v. Cooper et al., 27 Dist. R. 471, where it is said that Judge McIlvaine, to support

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Bleakley's Estate.

his decision, read into the act the words " at the trial," not there found. In this case the plaintiff whose testimony it was desired to take resided in the State of Arkansas.

In the case of Anderson v. Long, 56 Pa. Superior Ct. 183, nearly a month before the case was called for trial in the lower court, a demand was made of plaintiff's counsel to produce the plaintiff at the trial for cross-examination. But the Superior Court, speaking through Judge Orlady, says this was manifestly too late in time, and that the defendant could have issued his own cimmission if the testimony as taken did not fully cover the subject-matter to his satisfaction, making reference as authority therefor to the 8th section of the Act of 1887.

In the case of International Coal Mining Co. v. Pennsylvania R. R. Co., 214 Pa. 469, the law as to the equitable powers of the courts to authorize the taking of testimony by a commission is considered in some of its phases, and it is said that courts of equity have departed from the rule of the common law on the subject so as "to allow testimony to be perpetuated and taken where cause exists for perpetuating and taking it."

Referring to the facts set forth in the petition in this matter and the reasons assigned as a basis therefor, the age of the witness whose testimony is desired, sixty-eight years, and the necessary expense of the long journey to the place of hearing or trial are regarded as in themselves reasonable cause for the allowance of the prayer of the petition. But, in addition to these, there is the averment that, by reason of physical infirmities, the journey from her home to this county would be dangerous to her health and life, and this is supported not only by her own affidavit but by the affidavits of two practicing physicians of the vicinity of her home. It is true that this averment as to the state of her health is denied by the answer to her petition, but the denial is in general terms, and, under the circumstances, must be regarded largely as pro forma and insufficient as against the particular averments of the petition.

In view of the nature of the controversy under investigation, it may be, and it is thought probable, that an oral examination of the witness as authorized by section 20, paragraph (b) 3, of the Orphans' Court Act of June 7, 1917, P. L. 363, would be preferable as a method of eliciting fully her knowledge on the subject, and since, as understood, counsel for both petitioner and respondents so intimated at the argument of the pending rule, the order which follows is made:

And now, Jan. 13, 1919, after argument and due consideration, the pending rule to show cause is made absolute and leave to issue a commission as prayed for by the petitioner is granted, the proceedings and practice specified and provided in Rule of Court No. 113 to be followed: Provided, however, that if the respondents shall, within five days after the date of this order, cause to be filed of record a stipulation consenting that the testimony of the witness referred to by the petitioner may be taken orally, as provided by section 20, paragraph (b) 3, of the Orphans' Court Act of June 7, 1917, P. L. 363, without allowance for fees or traveling expenses, on twenty days' notice, then the petitioner to enter a rule for such purpose, and the rule for the commission to be discharged.

Court of Common Pleas of Allegheny County

Rhodes, etc., et al. v. Terheyden et al.

Pleading and practice-Negotiable instrument-Makers and endorsersParties-Executor-Practice Act of 1915.

When two endorsers pay a note, one cannot maintain an action for his own use and for the use of the other.

In a suit by the endorsee of a negotiable instrument it is never necessary, is generally inadvisable and sometimes fatal, to set out the negotiations or the purposes of the original parties.

Under the Practice Act of 1915, the court may enter judgment for defendant on a question of law raised by an affidavit of defense, but is not authorized to enter judgment for plaintiff at that stage of the proceedings.

An executor under the Practice Act of 1915 in an affidavit of defense need state only those facts which he admits to be true and that he believes there is a just and legal defense to the remainder, and the facts on which he bases his belief.

Demurrer to statement.

July Term, 1919, No. 1448.

Seymour, Patterson & Siebeneck, for plaintiffs.

Charles A. Woods and McIlvain, Murphy & Mohn, for defendants.

September 25, 1919. Opinion by CARPENTER, J.

Plaintiffs' statement of claim contains 32 paragraphs and sets out various transactions which resulted in the making of a promissory note by George I. Whitney to the order of Stuart H. Robinson for the sum of $5,000, which note, he avers, was endorsed by Robinson, Fickeisen and himself, and then by Whitney and Fickeisen, Trustees, and discounted by the Western Savings & Deposit Bank, the proceeds being placed to the credit of Whitney and Fickeisen, Trustees. He further avers that this note was twice renewed and subsequently was paid by him and Robinson. A copy of the note marked Exhibit "B" is attached to and made part of the statement. It is not specifically averred that suit is brought on the note, but it is averred in paragraph 26 that— "At the maturity of said note, Exhibit 'B,' the same was duly protested and notice of said protest was duly given to all parties whose names appeared on said note, including the legal plaintiff and the use plaintiff."

It is averred in paragraph 30, that-" Subsequently the said legal plaintiff caused demand to be made on each of the said three defendants for the payment of said principal sum of said note together with interest thereon from the 12th day of March, 1918."

Refusal to pay is averred in paragraph 31. The suit is against the maker and endorsers and against a party who is neither maker or endorser. This is palpable misjoinder. If Rhodes and Robinson jointly

Commonwealth of Pennsylvania v. Leventhal.

paid a debt for which they are entitled to reimbursement by the defendants they cannot maintain this action.

But whatever be the theory or the alleged facts on which the right to recover is based, the statement does not meet the requirements of the Practice Act. The fifth section of the Act says:

"Every pleading shall contain, and contain only, a statement in a concise and summary form of the material facts on which the party pleading relies for his claim or defense, but not the evidence by which they are to be proved, or inferences or conclusions of law, and shall be divided into paragraphs numbered consecutively, each of which shall contain but one material fact."

Section 9 says: "The statement of claim shall be as brief as the nature of the case will admit."

In a suit by the endorsee of a negotiable instrument it is never necessary, is generally inadvisable, and sometimes fatal, to set out the negotiations or the purpose of the original parties.

The Act having prescribed the form and substance of the statement, sets out the course that may be pursued by defendant. He may, by affidavit, raise a question of law without answering the averments of fact. The question raised must be disposed of before he is required to take any further steps in pleading. If the Court decides the question of law against him the statute allows fifteen days in which to file an affidavit of defense to the averments of fact. The Court may enter judgment for defendant, but is not authorized to enter judgment for plaintiff, at this stage in the proceedings.

Section 17 allows plaintiff to take a rule for judgment for want of a sufficient affidavit of defense to the whole or any part of the claim. It follows that a defendant who desires to question the legal sufficiency of the statement of claim should file his affidavit, "raising the question of law." In this respect the affidavits of defense filed by Fickeisen personally and as executor do not comply with the provisions of the Act. Both affidavits raise one or more questions of law and both answer the averments of the statement.

Section 7 provides that when the affidavit of defense (to the merits) is made by an executor he need state only those facts which he admits to be true and that he believes there is a just and legal defense to the remainder, and the facts on which he bases his belief.

The Court is not permitted to ignore or modify the Practice Act and counsel should adhere strictly to its provisions. And inasmuch as Section 20 does not authorize the Court, in disposing of any question of law raised by the defendant in the manner provided, to enter judgment for plaintiff and on the contrary allows the defendant fifteen days, after an adverse decision, within which "he may file a supplemental affidavit of defense to the averments of fact of the statement," he may and should rely upon it.

And now, September 25th, 1919, the Court being of opinion that, on the question raised, the law is with defendants, direct that judgment be entered in their favor.

Superior Court of Penusylvania

Borough of Mountville v. Clarence H. Gable, Appellant.

Highway-Adverse user by public-Dedication-Prescription.

An owner may dedicate his ground to public use by any act which sufficiently evinces his will. The question of dedication is one of intention, to be determined from all the facts by a jury or in equity by the judge sitting as a chancellor.

A former owner of property at the intersection of two public highways at a sharp angle, who used the premises as a dwelling and sales stable, removed and set back fences and hitching-posts leaving an unobstructed triangle of ground at the point of intersection, which he cut off from his house by a curb, pavement and fence, and the borough authorities leveled the triangle with the highways and the public used the same without any limitation, together with the owner, as part of the public road for thirty years.

Held, that there was sufficient evidence of a dedication to public use to justify a decree permanently enjoining the present owner from erecting a new curb on the triangle.

No prescriptive right arises from the action of an owner of real estate in setting back his fence for his own use and convenience nor is such action a dedication to public use, but permissive use may by subsequent action be changed to an admission of the public right to use or a dedication to public use.

Appeal No. 246 of October Term, 1919, by defendant from decree of C. P. of Lancaster Co. in equity to Equity Docket 6, p. 271, making permanent an injunction.

Bill for injunction.

Exceptions to finding of Court.

For opinion of the Court below, HASSLER, J., making permanent the injunction, see 36 LAW REVIEW 162.

The opinion of the Court below dismissing the exceptions was as follows:

July 5, 1919. Opinion by HASSLER, J.

We have carefully examined the authorities cited in support of the exceptions filed to our findings of fact and conclusions of law, and are not convinced that we committed any error in arriving at them. It will not be necessary for us to repeat what we have said in that opinion. The facts found are fully justified by the evidence, and the conclusions of law we think are in accord with the cases we have cited.

It is correct as contended by the plaintiff's attorney that no prescriptive right to use the ground in dispute can arise from the action of the owner seventy years ago in throwing it open for his own use, nor can such action on his part be construed as a dedication of it to the public use. It is also correct that the use having originally been permissive, continued such unless subsequent circumstances showed a change. We think such change occurred at or subsequent to 1885,

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