Opinion
October 17, 1934.
January 4, 1935.
Appeals — Review — Order refusing to enter judgment for want of sufficient affidavit of defense.
An order refusing to enter judgment for want of a sufficient affidavit of defense will not be reversed by the appellate court unless the action of the court below clearly appears to be based on a plain error of law.
Appeal No. 373, October T., 1934, by plaintiff from order of M.C., Philadelphia County, Jan. T., 1934, No. 1050, in the case of The Pennsylvania Railroad Company v. Merchants' Warehouse Company.
Before TREXLER, P.J., KELLER, CUNNINGHAM, BALDRIGE, STADTFELD and PARKER, JJ. Affirmed.
Assumpsit.
The facts are stated in the opinion of the Superior Court.
Rule for judgment for want of sufficient affidavit of defense discharged, opinion by CRANE, J. Plaintiff appealed.
Error assigned was discharge of rule.
Henry Wolf Bikle, with him Rhoads Coulston and William F. Zearfaus, for appellant.
Robert G. Erskine, and with him M. Hampton Todd, for appellee.
Argued October 17, 1934.
The court below refused to enter judgment for want of a sufficient affidavit of defense. After reading the pleadings, we are all of the opinion that this case falls within the rule that an order of this kind is not reversible unless the action of the court below clearly appears to be based on a plain error of law. We think an opportunity should be given to develop the facts at the trial: Goodrich Rubber Co. v. Motor Tire Corp., 291 Pa. 185, 140 A. 269 and Colonial Securities Co. v. Levy, 302 Pa. 329, 153 A. 553.
The order appealed from is affirmed.