STEINER ET UX. v. GR. SHARON REALTY CO., 291 Pa. 187 (1927)

140 A. 270

Steiner et ux., Appellants, v. Greater Sharon Realty Co.

Supreme Court of Pennsylvania.September 29, 1927.
November 28, 1927.

Appeals — Affidavit of defense — Refusal of judgment.

On appeal from an order refusing judgment for want of a sufficient affidavit of defense, the appellate court will not reverse unless plaintiff makes it quite clear that, on the statement of claim and affidavit of defense, appellant was undoubtedly entitled to the relief refused by the court below.

Argued September 29, 1927.

Before MOSCHZISKER, C. J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

Appeal, No. 138, March T., 1927, by plaintiffs, from order of C. P. Allegheny Co., July T., 1927, No. 820, discharging rule for judgment for want of a sufficient affidavit of defense, in case of Max W. Steiner et ux. v. Greater Sharon Realty Co. Affirmed.

Rule for judgment for want of sufficient affidavit of defense. Before ROWAND, J.

The opinion of the Supreme Court states the facts.

Rule discharged. Plaintiff appealed.

Error assigned was order, quoting record.

John A. Metz, for appellants.

Page 188

Edward O. Tabor, of McCahill Tabor, for appellee.

PER CURIAM, November 28, 1927:

Plaintiffs entered a rule for judgment for want of a sufficient affidavit of defense, first, for the whole amount of their claim, and, next, for a part of it. The court below discharged the rule and this appeal ensued.

The general principles governing such cases are so well known that it would serve no useful purpose to restate them here; nor would that end be served by detailing the facts or the manner in which they are set forth in the present pleadings. It is sufficient to say that, on appeals from orders such as the one now before us, we never reverse unless plaintiff makes it quite clear that, on the statement of claim and affidavit of defense, appellant was undoubtedly entitled to the relief refused by the court below. While, in some particulars, the defense in this case may be evasively averred, yet, on a review of the pleadings as a whole, we cannot say that the court erred in refusing judgment. See opinion in Goodrich R. Co. v. Motor Tire Corp., filed simultaneously herewith.

The order is affirmed.