Philadelphia Typewriter & Supply Co. v. Smith, Hutton & Kirk Co.

37 Pa. Super. 149, 1908 Pa. Super. LEXIS 252

• Court: Superior Court of Pennsylvania
• Decided: October 12, 1908
• Docket: Appeal, No. 234
• Status: Published

Opinion

Opinion by

Beaver, J.,

The Act of April 18,1874, P. L. 64, allowing a writ of error to the refusal of judgment for want of a sufficient affidavit of defense was construed shortly after its passage in Griffith et al. v. Sitgreaves, 81* Pa. 378. It was said:

“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.”

This rule has been consistently followed in many later cases, notably Radcliffe v. Herbst, 135 Pa. 568; Ætna Ins. Co. v. Confer, 158 Pa. 598; Ensign et al. v. Kindred, 163 Pa. 638; Security Savings & Loan Assn. v. Anderson, 172 Pa. 305; Kidder Elevator Interlock Co. v. Muckle, 198 Pa. 388, which are all to the same effect.

Even if the argument of the appellant should raise a doubt as to the sufficiency of the affidavit of defense in this case, there is not such clear error on the part of the court below as should induce us to reverse its order in refusing to enter judgment for want of a sufficient affidavit of defense.

The order of the court below, refusing judgment for want of a sufficient affidavit of defense, is affirmed and the appeal dismissed at the costs of the appellant.