Opinion
March 26, 1930.
April 14, 1930.
Appeals — Affidavit of defense — Refusal of judgment — Order not free from doubt.
1. Where the Supreme Court finds on an appeal from an order refusing judgment for want of a sufficient affidavit of defense that it is not clear and free from doubt that the court below erred, it will not disturb the order.
2. In such case, the appellate court will not discuss the applicable rules of law, until an opportunity is had fully to develop the facts at the trial.
Argued March 26, 1930.
Before MOSCHZISKER, C. J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.
Appeal, No. 32, March T., 1930, by plaintiff, from order of C. P. Clarion Co., May T., 1929, No. 116, discharging rule for judgment for want of sufficient affidavit of defense, in case of Mary A. Kaster v. Pennsylvania Fuel Supply Company. Affirmed.
Rule for judgment for want of a sufficient affidavit of defense. Before HARVEY, P. J.
The opinion of the Supreme Court states the case.
Rule discharged. Plaintiff appealed.
Error assigned, inter alia, was order, quoting record.
Geo. W. Whitmer, with him A. A. Geary, for appellant.
A. Leo Weil, with him J. Smith Christy, of Weil, Christy Weil, for appellee.
This appeal is from an order refusing judgment for want of a sufficient affidavit of defense. After reading the pleadings, and considering argument of counsel, we cannot say it is "clear and free from doubt" that the court below erred in refusing judgment; following the usual course pursued in such cases, we shall not disturb the orders appealed from; nor shall we discuss the applicable rules of law, till an opportunity is had fully to develop the facts at trial: Wilson v. Bryn Mawr Trust Co., 225 Pa. 143. See also Brown v. Unger, 269 Pa. 471; Mancia v. Marquette Nat. Fire Ins. Co., 280 Pa. 174; Wilson v. Garland, 287 Pa. 291; Phila. v. Merchant Evans Co., 289 Pa. 578; Hulton v. Union Ice C. S. Co., 291 Pa. 447; Jaffe v. Lipsky Bros., 291 Pa. 470, and Real Estate-Land Title Tr. Co., Executor, v. Fidelity Mutual L. I. Co., 295 Pa. 90.
The order appealed from is affirmed.