Opinion
April 16, 1940.
April 29, 1940.
Appeals — Review — Order refusing judgment for want of a sufficient affidavit of defense.
An order refusing judgment for want of a sufficient affidavit of defense will not be reversed unless the appellate court is free from doubt that the court below erred in refusing judgment.
Appeal, No. 87, April T., 1940, from order of C.P. Beaver Co., March T., 1939, No. 22, in case of State Trading Corporation v. G. Fisher Addis, trading as Addis Music, Jewelry and Novelty Shoppe.
Before KELLER, P.J., CUNNINGHAM, BALDRIGE, STADTFELD, PARKER, RHODES and HIRT, JJ. Appeal dismissed.
Assumpsit.
The facts are stated in the opinion of the lower court, reported in 35 Pa. D. C. 123.
Motion for judgment for want of a sufficient affidavit of defense refused, opinion by WILSON, J. Plaintiff appealed.
Error assigned, among others, was refusal of motion for judgment.
M. Leon Tolochko, with him Harry Rosenberg, for appellant.
Joseph A. Tritchler, for appellee.
Argued April 16, 1940.
This appeal is from an order refusing judgment for want of a sufficient affidavit of defense. Such an order will not be reversed unless the appellate court is free from doubt that the court below erred in refusing judgment. After reading the pleadings and considering the arguments of counsel, we cannot say that plaintiff's right to summary judgment, on the pleadings and without trial, is sufficiently clear and free from doubt.
Following the usual course, we shall not disturb the order appealed from, nor discuss the merits or the rules of law applicable to the case until an opportunity is had to develop the facts at trial.
Appeal dismissed.