Taylor v. Sellers

Peb Curiam,

The affidavit of defense was filed by the son of the defendant, who, according to the allegations of the statement of claim, made the contract sued upon as the duly authorized agent of the defendant. It fully and unequivocally denied the making of the contract; in short, presented a complete defense. But it was insufficient to prevent judgment, because it did not set forth that the affiant was authorized by the defendant to make it, ■nor give the reasons why it was not made by her: 1 P. & L. Dig. of Dec. Col. 128; Griel v. Buckius, 114 Pa. 187. This defect was cured by the supplemental affidavit of defense filed by leave of court. This averred, in substance, that at the time the original affidavit was filed his mother, the defendant, was sick in bed afflicted with a stroke of paralysis, and, by reason thereof, was at that time, and still remained, incapable of understanding or comprehending or doing any business whatsoever or of making an affidavit of defense. The law never contemplated the entry of a summary judgment against a person who is mentally incapable of making an affidavit and of authorizing another to make it for her; and especially not in the face of an affidavit showing a complete defense to the action made by one who has personal knowledge of the transaction in question, and who stands in such relation to the defendant as did the affiant in the present ease. “ 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: ” Griel v. Buckius, supra. The affidavit comes up to the requirements of this rule, and under the circumstances of the case was properly made by the son. This is too plain for argument.

The assignments of error are overruled and the appeal is dismissed at the costs of the plaintiffs, but without prejudice, etc.