Opinion
December 10, 1930.
January 30, 1931.
Affidavit of defense — Rule for judgment for want of a sufficient affidavit of defense — Refusal of.
On a rule for a judgment for want of a sufficient affidavit of defense, the record disclosed that the defendant was the owner of certain property and that taxes were assessed against it. Subsequent to the assessment the plaintiff became the purchaser of property at a sheriff sale upon a judgment obtained in proceedings to recover arrears or ground rent charged on the premises in the plaintiff's favor. In so purchasing the property, the plaintiff was compelled to pay the taxes assessed against the defendant and the plaintiff in her statement of claim demanded the full amount of the taxes. The defendant in its affidavit of defense, admitted liability for a part of the sum but averred that the plaintiff had sold the property and had been reimbursed by the purchaser for a part of the taxes.
Held: (1) That the plaintiff's right to the amount in dispute is not so clear and free from doubt as to require the appellate court to reverse the court below and enter a summary judgment in her favor prior to a full and complete presentation of all facts, and (2) that the order of the court below refusing to enter a judgment against the defendant for want of a sufficient affidavit of defense will be affirmed.
Appeal No. 418, October T., 1930, by plaintiff from judgment of M.C., Philadelphia County, June T., 1930, No. 1140, in the case of Helen Foss Wood v. U.S. National Building and Loan Association.
Before TREXLER, P.J., KELLER, LINN, GAWTHROP, CUNNINGHAM, BALDRIGE and WHITMORE, JJ. Affirmed.
Assumpsit to recover taxes. Before KNOWLES, J.
Rules for judgment for want of a sufficient affidavit of defense.
The facts are stated in the opinion of the Superior Court.
The court discharged the rule. Plaintiff appealed.
Error assigned, among others, was the order of the court.
Robert W. Archbald, Jr., and with him Ralph C. Busser, Jr., and Matthew L. Barrett, Jr., for appellant.
Roy Martin Boyd, for appellee.
Argued December 10, 1930.
Plaintiff appeals from the order of the municipal court refusing to enter judgment in her favor for want of a sufficient affidavit of defense in an action of assumpsit. The rule in such cases is that we do not reverse the court below unless it is clear and free from doubt that the court erred in refusing judgment. According to the practice of the Supreme Court (Wilson v. Bryn Mawr Trust Co., 225 Pa. 143; Brown v. Unger, 269 Pa. 471) and of this court, (Minster v. Blair, 94 Pa. Super. 401) we do not discuss the applicable rules of law, in such cases, until an opportunity is had to develop the facts at trial.
Plaintiff claims to recover the taxes for the year 1930 on premises 1830 Spruce Street, Philadelphia, assessed while defendant was the owner, which she was compelled to pay after she had become the purchaser thereof at a sheriff's sale upon a judgment obtained in proceedings to recover arrears of ground rent charged on said premises in her favor.
The defendant acknowledges liability for $549.45 of the amount so paid, but disputes the plaintiff's right to collect the balance, $449.55, because it is alleged that on July 18, 1930 the plaintiff sold said premises to one Hoffman, and that the said Hoffman paid her the sum of $449.55, expressly by way of reimbursement to her for said taxes so paid by her, as aforesaid.
As the plaintiff's claim is not statutory but rests on the equitable right of subrogation, we do not think her right to the $449.55 in dispute is so clear and free from doubt as to require us to reverse the court below and enter summary judgment in her favor prior to a full and complete presentation of all the facts with respect to the nature and character of said alleged payment.
The order is affirmed.