January 31, 1927. The opinion of the Court was delivered by
MR. CHIEF JUSTICE WATTS.
The exceptions and grounds of appeal question the correctness of the rulings of Judge Henry in dismissing the answer of appellant on the ground that it was sham, irrelevant, and does not constitute a defense. The answer pleads failure of consideration, and that was an issue that appellant was entitled to have submitted to a jury.
This Court has decided in several cases that to decide an issue of fact on affidavits in most cases is unsatisfactory.
Here we have an issue of fact raised by the pleadings decided by his Honor, on most conflicting affidavits.
His Honor was in error, and the order appealed from is reversed.
MESSRS. JUSTICES COTHRAN, BLEASE, and STABLER, and MR. ACTING ASSOCIATE JUSTICE R.O. PURDY concur.