Brooks v. Keller

Per Curiam, In disposing of appeals from refusal of the court below to enter judgment for want of a sufficient affidavit of defense, the averments of fact in the affidavit, so far as they are relevant and material, must be accepted as verity. As has been repeatedly said, such rules are in the nature of demurrers to the affidavits of defense. Tested by that principle, we think the defendant's averments of fact, in this case, are sufficient to prevent a summary judgment and thus send the case to a jury. There was, therefore, no error in discharging the rule for judgment. Inasmuch as the case goes back for trial by jury, it is neither necessary nor desirable to discuss questions that may then arise. Appeal dismissed at plaintiff’s costs, without prejudice, etc., and record remitted for further proceedings.