Straus v. Welsh

29 Pa. Super. 437, 1905 Pa. Super. LEXIS 351

• Court: Superior Court of Pennsylvania
• Decided: November 20, 1905
• Docket: Appeal, No. 42
• Status: Published

Opinion

.Opinion by

Morrison, J.,

This was a judgment for want of a sufficient affidavit of defense. The affidavits are not well drawn but they exhibit a substantial defense to $60.00 of plaintiff’s claim.

To distinguish this case, in principle, from Simpson v. Karr, 22 Pa. Superior Ct. 8, and cases there cited, requires a refinement of criticism that we are not disposed to exercise in an endeavor to sustain a judgment for want of a sufficient affidavit of defense. If the affidavit and supplemental. affidavit of defense state facts, and we must now assume that they do, the case should have gone to a jury as to all of the plaintiff’s claim, except $88.00 and interest thereon.

The assignment of error is sustained and the judgment reversed, without prejudice, and a procedendo awarded, with leave to plaintiffs to move for judgment for $88.00, with interest thereon and costs, if they so desire, and they may go to trial for the balance of their claim.