Griel v. Buckius

Mr. Justice Paxson delivered the opinion of the»Court, The affidavit of defence in this case is clearly insufficient. It is not only' evasive but it was made by a stranger to the record. It is true he styles himself “attorney for Jacob Grid,” but whether he was attorney at law or attorney in fact does not appear. No reason is given why the defendant did not make the affidavit himself, nor does the affidavit show that it was made for and on behalf of the defendant, or even with his knowledge. Nor are these defects cured by the supplemental affidavit. In that the affiant refers to a power of attorney from the defendant as giving him “full power to sign the affidavit of defence in this case,” but an inspection of that instrument discloses no such authority. It refers to other matters in no way connected with this suit. It has never been held that no one but the defendant can make the affidavit of defence. Cases may arise where it would be physically ■ impossible for the defendant to make such an affidavit. Under such and similar circumstances we have no doubt that an affidavit of defence may be made on behalf of the defendant by an attorney at law or other person duly authorized, but the reason why it is .not made by the defendant should be set forth in the affidavit. The court can then judge of the sufficiency of such reason. It would never do to allow a stranger to the record to intermeddle in this manner. The correct rule would seem to be that when a defendant puts in a stranger’s affidavit, it must show upon its face sufficient reason why it was not made by the defendant himself; that a real disability existed which prevented him from making it, and the circumstances giving rise to the disability. This rule is generally observed in practice throughout the state so far as I have had an opportunity of ascertaining. It is certainly the rule in force in Philadelphia where the practice under the affidavit of defence law is older than in most of the other counties of the state. See Bancroft v. Sterr, 1 W. N. C., 132; Gross v. Paniter, Id., 154; Stonaker v. Ladner, Id., 169; City v. Devine, Id., 358; Russell v. Toran, Id., [191] 270; Philada. v. Gross, 2 Id., 429; Cowperthwait v. Roney, 10 Id., 482. The allegation in the supplemental affidavit that the affiant “ transacted all the business in the case, and has full knowledge of the whole work alleged to have been done ” does not meet the difficulty. It furnishes no reason why the defendant did not make the affidavit. For that purpose he is entitled to avail himself of the knowledge of others and may aver his facts upon information and belief. Nor is the supplemental affidavit specific. The original is wholly evasive, as before observed. Neither sets up more than, a defence to a portion of the claim, and there is no admission any where of how much the defendant admits to be due. Such language as that “ the whole bill is in excess of the price agreed upon, and is extortionate, and labor and material charged for which was not furnished,” is too vague. How much labor and material were charged for and not furnished ? Surely if the defendant knows the fact to be so he can tell the amount. And as to the few items which are more specific, there is no distinct averment made of any agreement with the defendant in regard to their price. It does not appear whether the contract referred to was oral or written, nor with whom made. Judgment affirmed. Mercur, O. J., dissents.