Chartiers Railway Co. v. Hodgens

Mr. Justice Williams delivered the opinion of the court, This case comes before us under the Act of 18th April 1874, Pamph. L. 64, the first section of which provides that in all actions now pending, or which may hereafter be brought, wherein, by Act of Assembly or rule of court, the plaintiff is entitled to ask for judgment for want of a sufficient affidavit of defence, and the court shall decide against his right to such judgment, plaintiff may except to such decision and take a writ of error to the Supreme Court. The action was brought to recover the unpaid assessments on four shares of stock, subscribed by the defendant, together with the statutory penalty of one per centum per month on each instalment, from the time the same became due and payable under the calls made'by the president and directors of the company. The defendant filed an affidavit of defence, setting out in substance that by the provisions of the company’s charter, the city of Pittsburg was designated as one terminus of its railroad, and the borough of Washington, in the county of Washington, as the other terminus thereof; that the defendant by the terms and legal effect of the contract upon which the suit is founded, engaged to pay the sum therein mentioned, only upon condition that the plaintiff would in good faith observe the provisions of its charter, and construct its road to the terminal points designated; that the plaintiff, while claiming to have completed its road, has not extended it to either of the terminal points aforesaid, but has terminated it on the north at the town of Mansfield, some eight miles distant from the city of Pittsburg, and has finally abandoned the construction of its road in the direction of the said city; and on the south at the Cumberland road, on the farm of Catharine Shirls, two thousand feet, or [191] thereabouts, distant from the terminus fixed by its charter, and contemplated and required by the contract between it and this defendant, and has there erected passenger and freight depots, engine house and other buildings necessary for the accommodation of its business; starts and stops all its trains, and receives and delivers all its freight at the said point, and so has continued to do since the opening of its road, and has definitely fixed and determined the same as the southern terminus thereof. Upon the filing of the affidavit the plaintiff moved for judgment for want of a sufficient affidavit of defence, and after argument the court refused the motion, to which the plaintiff excepted; and thereupon sued out this writ of error, and assigned as error the refusal of the court to enter judgment for the plaintiff m default of a sufficient affidavit of defence. The case has been ably argued by the counsel on both sides, and while the question as to the sufficiency of the affidavit is not free from doubt, a majority of the court are of the opinion that the facts set forth therein constitute primfi facie a good and valid defence to the action, and that the court below was right in refusing to enter judgment for the plaintiff. Under the provisions of the Act the writ of error must, therefore, be dismissed without prejudice to the plaintiff’s right to trial by jury and a second writ of error after final judgment. Where the decision of the court below in refusing to enter judgment for the plaintiff, in default of a sufficient affidavit of defence, is sustained, it is manifest that the act intends that the case shall go back and be tried precisely as it would have been if no writ of error had been taken, and therefore any discussion of the principles of law involved in the action would be out of place until the case comes here on a writ of error after verdict and judgment. It is therefore ordered that the writ of error in this case be dismissed at the costs of the plaintiff, without prejudice, &c. Justices Sharswood and Gordon dissented.