Commonwealth v. Magee
Commonwealth v. Magee
Opinion of the Court
Opinion by
This action is founded on an award of the orphans’ court and
To sustain the contention of the appellee we must infer certain facts which do not clearly appear in the opinion of the auditing judge. A calculation is necessary to ascertain the difference between the amount realized from the real estate and that for distribution under the account filed, and the manner of the application of this difference does not appear in the record. The sale of the real estate was for the payment of debts, but the application of the personal estate fund and the precedence of the claims allowed by the administrator over the one in this suit is not explained. The liability of this surety is measured by the terms of the bond, and the statement is not sufficiently clear and definite to warrant a summary judgment. Judgment reversed with a procedendo.
Reference
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- Syllabus
- Pleading — Statement of claim — Affidavit of defense- — Bond. To entitle a plaintiff to judgment for want of an affidavit or a sufficient affidavit of defense all the essential ingredients of a complete cause of action must affirmatively appear in the statement and the exhibits which are made part thereof; the statement of the demand must be self sustaining; that is to say, it must set forth in clear and concise terms a good cause of action, by which is meant such averments of fact as, if not controverted, would entitle him to a verdict for the amount of his claim. In an action against a surety upon a bond given by an administrator for the sole purpose of securing proper distribution of the proceeds of sale of real estate for the payment of debts, a statement of claim is insufficient to support a summary judgment which fails to aver that an award made by the orphans’ court and claimed by the plaintiff, was a portion of the proceeds of such sale.