Affidavit of defense — Sufficiency — Judgment for want of a sufficient affidavit of defense — Writ of error — Act of April 18, 1874, P.L. 64.
The Act of 1874, P.L. 64, authorizing writs of error to be taken when a Court of Common Pleas refuses to enter judgment on the ground of sufficiency of an affidavit of defense, was intended to reach only clear cases of error in law, and thus 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.
An order discharging a rule for judgment for want of a sufficient affidavit of defense will be affirmed where the affidavit although containing certain defects in its pleading still leaves a doubt as to its insufficiency.
Submitted April 16, 1928.
PER CURIAM, April 18, 1928:
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. Super. 432, 436; Lee Lash v. Russell Sales Co., 92 Pa. Super. 598.
Order affirmed and appeal dismissed.