Johnson Ex Rel. Manufacturers' Finance Co. v. Mercantile Insurance Co. of America

93 Pa. Super. 357, 1928 Pa. Super. LEXIS 337

• Court: Superior Court of Pennsylvania
• Decided: April 16, 1928
• Docket: Appeal 31
• Status: Published

Opinion

Per Curiam,

This appeal was submitted here without oral argument. Appellant complains of the discharge of a rule for judgment for want of a sufficient affidavit of defense.

We need not discuss the pleadings; it is sufficient to say that the case is within the familiar rule adopted shortly after the enactment of the statute allowing an appeal from the refusal to enter judgment. “The act -of Assembly authorizing writs of error to be taken when a Court of Common Pleas refuses to enter judgment on the ground of the sufficiency of an affidavit of defense, was intended to reach only clear cases of error in law, and thus to prevent the delay of a trial. Its effect is often to produce two writs of error in the same cause, instead of one, and is not to be encouraged. Such writs should be confined to plain errors of law. In doubtful cases, and especially in those requiring broad inquiry into facts, where the court refuses judgment, the matter in ¡controversy should go to the jury, as the proper tribunal to decide the cause under proper instructions from the court”: Griffith et al. v. Sitgreaves, 81* Pa. 378, 382.

That rule is still effective: P. R. R. v. Coles, 87 Pa. Superior Ct. 432, 436; Lee Lash v. Russell Sales Co., 92 Pa. Superior Ct. 598.

Order affirmed and appeal dismissed.