Opinion
October 8, 1934.
November 26, 1934.
Practice — Judgment for want of sufficient affidavit — Doubt.
Where a doubt exists as to whether a summary judgment for want of a sufficient affidavit of defense should be entered, this should be resolved in favor of refusing to enter it. [284]
Argued October 8, 1934.
Before FRAZER, C. J., SIMPSON, KEPHART, SCHAFFER, MAXEY, DREW and LINN, JJ.
Appeal, No. 183, March T., 1934, by plaintiff, from order of C. P. Allegheny Co., July T., 1933, No. 788, in case of The Chase National Bank of the City of New York v. Charles S. Krouse. Dismissal of rule affirmed.
Assumpsit on promissory notes.
Rule for judgment for want of sufficient affidavit of defense.
The facts are stated in the opinion of the lower court, by EGAN, J., which is as follows:
This is plaintiff's rule for judgment for want of a sufficient affidavit of defense. According to the statement of claim, suit was entered against the defendant growing out of his alleged endorsement of three promissory notes, each for $15,000, alleged to have been made by the Dexter Lumber Flooring Company and delivered to the plaintiff for value. Each note was for a period of ninety days, the first one, Exhibit A, being dated September 2, 1930, the second one, Exhibit B, being dated September 18, 1930. There are averments of presentment on the dates of maturity, failure to pay and protest, the certificates of protest being attached. It is averred in the statement of claim that a receiver was appointed for the Dexter Lumber Flooring Company by the District Court of the United States for the Western District of Pennsylvania on or about January 2, 1931, and that a small dividend was paid plaintiff by the receiver on account of its claim. There is an averment of demand upon defendant for payment and his refusal.
An affidavit of defense of considerable length was filed by the defendant, in which he denies that the notes in suit were signed or endorsed by the alleged maker, and further avers that they are not valid and binding obligations of the alleged maker. This raises an issue of fact which must be passed upon by a jury. Other involved matters are raised in the affidavit of defense, but require no discussion inasmuch as the case must go to trial.
We are of the opinion that the case comes within the principle that "where a doubt exists as to whether a summary judgment should be entered, this should be resolved in favor of refusing to enter it": Chelten Ave. Building Corp. v. Mayer, 306 Pa. 225; Flinn v. 339 Fifth Ave. Land Co., 309 Pa. 247; Elliott v. McGoun, 307 Pa. 185; McSorley v. Little, 307 Pa. 316; Brannen v. B. L. Assn., 310 Pa. 278; Coral Gables, Inc., v. Mac-Broom, 311 Pa. 183; Tanner v. Yarn Co., 314 Pa. 20.
Rule for judgment for want of sufficient affidavit of defense discharged, MOORE, PATTERSON and EGAN, JJ. Plaintiff appealed.
Error assigned was discharge of rule, referring to record.
Carl E. Glock, with him Thomas W. Pomeroy, Jr., and Reed, Smith, Shaw McClay, for appellant.
Howard D. Montgomery, for appellee.
This is not such a clear case as to warrant a judgment for want of a sufficient affidavit of defense. The lower court refused judgment, from which order plaintiff appealed. The dismissal of the rule is affirmed on the opinion of Judge EGAN.