Opinion
April 19, 1939.
May 15, 1939.
Practice — Judgments — Summary — Sufficiency of affidavit of defense — Doubtful case — Replevin proceeding — Defects of form — Agreement — Oral or written — Agency.
1. Summary judgment should not be awarded in any case unless it is free from doubt, and one in which a jury trial would be useless. [567-8]
2. Where, in a replevin proceeding, plaintiff claimed title under the terms of a bailment lease, and the right to possession because of defendant's default; and defendant did not simply deny this allegation generally but specifically asserted title by virtue of a separate agreement of sale at a later date, describing the terms thereof, failure of defendant to state whether the agreement of sale was written or oral, and the name of the agent who acted for plaintiff, constituted defects of form which were not sufficient to warrant a summary judgment for want of a sufficient affidavit of defense. [567]
Replevin — Issue — Title and right to possession — Extraneous matter — Surplusage.
3. In an action of replevin the issue is confined to the question of title and the exclusive right of possession; all extraneous matters may be treated as surplusage. [567]
Argued April 19, 1939.
Before KEPHART, C. J., SCHAFFER, MAXEY, DREW, LINN, STERN and BARNES, JJ.
Appeal, No. 152, Jan. T., 1939, from judgment of C. P. No. 2, Phila. Co., Sept. T., 1938, No. 2313, in case of Koehring Company v. Pacifico Ventresca. Judgment reversed with a venire.
Replevin proceedings.
The opinion of the Supreme Court states the facts.
Rule obtained by plaintiff for judgment for want of a sufficient affidavit of defense made absolute, opinion by LEWIS, J. Defendant appealed.
Errors assigned were action of the court below in making absolute the rule for judgment and entry of judgment against defendant.
Walter B. Gibbons, for appellant.
George M. Miller, Jr., with him Conard Middleton, for appellee.
The sole issue to be determined in this case of replevin for a clam-shell crane was one of title and right of possession. All extraneous matters may be treated as surplusage: Blossom Prod. Corp. v. Natl. Underwear Co., 325 Pa. 383, 387. Appellee claimed title under the terms of a bailment lease, and the right to possession because of appellant's default. The latter did not simply deny this allegation generally, (for that would be insufficient, Jones et al. v. Dubuque F. M. Ins. Co., 317 Pa. 144, 147), but specifically asserted title by virtue of a separate agreement of sale at a later date, describing the terms thereof. Although it was not stated whether the agreement of sale was written or oral, and the name of the agent who acted for appellee was not given, these omissions were not sufficient to warrant a summary judgment for want of a sufficient affidavit of defense; under the circumstances, these were defects of form.
See Lee-Strauss Co. v. Kelly, 292 Pa. 403, 406; Blossom Prod. Corp. v. Natl. Underwear Co., 325 Pa. 383, 386; MacDonald v. Leverington Const. Co., 331 Pa. 381, 383.
A court should never award a summary judgment in any case unless it is free from doubt, and one in which a jury trial would be useless. As stated in Helfenstein v. Line Mount. Coal Co., 284 Pa. 78, 81, "judgment for want of a sufficient affidavit of defense should not be ordered except in clear cases."
See also Eizen v. Stecker, Inc., 295 Pa. 497, 500; Davis et al. v. Investment Land Co., 296 Pa. 449, 453; Ross v. Leberman et al., 298 Pa. 574, 576; Ottman et al. v. Nixon-Nirdlinger et al., 301 Pa. 234, 244; Chelten Ave. Bldg. Corp. v. Mayer, 306 Pa. 225, 227; McSorley v. Little et al., 307 Pa. 316, 319; Flinn et al. v. 339 Fifth Ave. Land Co., 309 Pa. 247; Stevens v. Smith, 310 Pa. 287; Coral Gables, Inc., v. MacBroom, 311 Pa. 183; Chase Nat. Bk. v. Krouse, 316 Pa. 283; Peabody v. Carr, 316 Pa. 413, 416.
Judgment reversed with a venire.