Third Ref. D. Church v. Jones

Opnion, Mr. Justice Sterrett: The general question, presented by this record, is whether the averments of fact in the affidavits of defence are sufficient to carry the cause to a jury. In considering that question, the rule for judgment, etc., must be regarded in the nature of a demurrer to the affidavits of defence. For the purposes of the present inquiry, every material averment of fact contained therein must be accepted as true. If, therefore, either of those averments contains what in law or equity amounts to a substantial defence to the plaintiff’s claim, it follows, of course, that the court erred in entering the judgment complained of. This suit was brought in the name of the Third Reformed Dutch Church of Philadelphia against appellant, to recover certain funds, books, and papers which it is alleged he received as treasurer of the church, and, on demand, refused to deliver to his successor in office. In the fourth paragraph of plaintiff’s statement of claim it is, in substance, alleged that the term for ■which appellant was elected treasurer expired in January, 1883, and afterwards the board of trustees elected Adrian Van Helden, treasurer, in his place and as his successor; that Van Helden, under the direction of the board of trustees, demanded from appellant the money, books, and papers, property of the plaintiff, which he then, and ever since has, refused to deliver. In reply to these allegations, the appellant in his affidavit says: “ I deny the truth of all the averments in the fourth paragraph, saving that it is true I have refused to deliver said money, books, and papers to said Van Helden. I deny that said Van Helden is the treasurer of the church; that the board of trustees have ever requested me to deliver said property to said Van Helden, or any other person. I aver that the said board of trustees desire me to retain them.” In the sixth paragraph of his affidavit of defence appellant further avers “ that the present suit is not brought by the corporation plaintiff, nor at its request, nor with its assent. I [466] aver that certain seceders from the church, including George F. Gordon and Adrian Van Helden, have brought suit without authority, and with the intent of possessing themselves of the funds of the church without proper authority. I aver that the seal to the warrant of attorney filed is not the true seal of the corporation plaintiff, which is in my custody as treasurer of the trustees. The seal to the warrant is one which has been made by said seceders without any authorization by the corporation plaintiff.” In the face of these and other averments that might be noted, virtually charging that the name of the corporation plaintiff 'is being improperly used, without authority, and by persons who have no right to the money, books, and papers in question, nor anjr right to compel appellant even to account to them therefor, it is difficult to see how the court could safely proceed to enter judgment, and liquidate the amount thereof, without the intervention of a jury, or the settlement of disputed facts in some other legitimate mode. As we read the affidavits of defence, they certainly do deny the truth of some allegations of fact which affect the right of recovery. It is neither necessary nor proper, at this stage of the cause, that we should enlarge on any of the points suggested by the affidavits of defence. When the facts are more fully brought out on the trial, they may present an entirely different aspect. All that need be said at present is, that an inspection of the statement of claim and the affidavits of defence has led us to the conclusion that the case, as therein presented, is not one in which judgment should have been entered for want of a sufficient affidavit of defence. Judgment reversed, and a procedendo awarded.