Radcliffe v. Herbst

Pee. Cueiam : This was an appeal from the refusal of the court below to enter judgment against the defendants for want of a sufficient affidavit of defence. The language of this court in Griffith v. Sitgreaves, 81* Pa. 378, is so applicable to this class of cases that I quote it here: “ The act of assembly authorizing writs of error to be taken when a Court of Common Pleas refuses to enter judgment on the ground of the sufficiency of an affidavit of defence, was intended to reach only clear cases of error in law, and thus to prevent the delay of a trial. Its effect is often to produce two writs of error in the same cause, instead of one, and is not to be encouraged. Such writs should be confined to plain errors of law. In doubtful cases, and especially in those requiring broad inquiry into facts, where the court refuses judgment the matter in controversy should go to the jury, as the. proper tribunal to decide the cause, under proper instructions from the court.” Our further experience with the act referred to confirms us in the wisdom of these remarks. The practice is growing to bring up cases upon the refusal of the court to enter judgment; nor, are such writs, as a general practice, confined to plain errors of law, as they should be. The instances are rare where any benefit results therefrom; frequently, the cases could have been tried below in less time than is required to bring them here upon appeal. The practical effect of such a mode of practice is to delay, instead of speeding causes, and to add materially to the expenses of the litigants. Tested by the rule indicated in Griffith v. Sitgreaves, supra, the order of the court below must be affirmed. In view of the fact that the case may come here again upon another appeal, we decline to discuss its merits. It is sufficient to say that the affidavit discloses some facts which ought to be passed upon by a jury. The order below is affirmed.