Merchants National Bank v. Eckels

43 A. 245, 191 Pa. 372, 1899 Pa. LEXIS 827

• Court: Supreme Court of Pennsylvania
• Decided: May 8, 1899
• Docket: Appeal, No. 170
• Status: Published

Opinion

Opinion by

Mb. Chief Justice Stebbett,

The sole question in this case is whether the averments of facts contained in the affidavits of defense are sufficient to prevent a summary judgment. In disposing of such questions, the truth of aE facts properly averred in the affidavit of defense must necessarily be conclusively presumed to be true, because the rule for judgment for want of a sufficient affidavit is in the nature of a demurrer thereto. Applying this principle to the case before us, we are aE of opinion that the facts properly averred by the defendant are sufficient to carry the case to a jury; and hence there was error in making the rule for judgment absolute, etc.

Inasmuch as the case goes back for trial, further discussion of the questions involved in the defense that is interposed is neither necessary nor desirable.

Judgment reversed and record remitted with a procedendo.