Davis v. Fleshman

Opinion by Mr. Justice Moschzisker, The appellant states two questions involved: “First: Is the New Jersey statute set forth in the plaintiff’s statement of claim enforceable in the state of Pennsylvania under art.' IV, sec. 1, of the constitution of the United States and the acts of Congress passed in pursuance thereof?” and, “Second: Is the New Jersey statute [412] against the policy of the law of the commonwealth of Pennsylvania, and if so can the courts of this state refuse to enforce it?” It is not necessary to determine either of these questions as they are not properly before us. Both of them were decided adversely to the plaintiff by the court below in disposing of the demurrer to the statement of claim, and instead of excepting to that ruling and standing upon the points at issue, the plaintiff amended his statement in such a manner as enabled him to base his claim for recovery upon the law of Pennsylvania rather than upon the New Jersey statute. Had the plaintiff desired to raise the question of the propriety of the ruling of the court below to the effect that the New Jersey statute declared upon by him was contrary to the- public policy of the law of Pennsylvania and would not be enforced in this state, he should have taken an exception so that he might at a proper time assign the ruling for error; since he did not pursue this course, but took advantage of the leave to amend, we must view his statement as though the plaintiff had acquiesced in that ruling and had elected to rely upon the law of this state alone. “If a party, after judgment upon demurrer to pleadings is given against him, under leave of court, amends the pleading demurred to, he acquiesces in the judgment upon the demurrer, and . .will not be permitted to assign it for error in the appellate court:” 2 Cyc. 645. See also Sheppard v. Shelton, 34 Ala. 652; Ellison v. Allen, 8 Fla. 206; particularly is this so when no exception has been taken. We cannot say that the facts as shown upon the record before us are plain, or that the statement of claim and affidavits of defense raise a pure question of law; nor can we say under the peculiar circumstances of this case that the defendant was obliged to furnish a more specific statement of the facts constituting his defence. Hence, it cannot be held that the court below committed error in discharging the rule for judgment for want of a sufficient affidavit of defense. [413] Whether this is a case where the evidence will show that the illegal gambling transactions were closed and the accounts stated between the parties, and where the original deposits still remain with the broker so identified that they can be recovered back; or, an instance where the plaintiff is endeavoring to reclaim losses paid on illegal gambling transactions, which the law will not aid him to recover; or, one where the plaintiff dealt with the defendants as principals, and where the conduct of the parties demonstrates that as between themselves they treated the matter as closed, settled and ended, and where, all being sui juris, the law will look at the plaintiff as one who has paid his bet, the loss from which he will not be assisted to recover, cannot be satisfactorily ascertained from the information contained in the statement of claim and the affidavits of defense. We shall not attempt to adjudge any of these issues at this time; they can best be determined at trial where it will be possible to secure all the relevant facts in regard to the dealings between the parties and to reach a correct decision as to their rights. The appeal is dismissed at the costs of the appellant, without prejudice, and the record is remitted with a procedendo.