Lengert v. Chaninel

Opinion by Mr. Justice Mestrezat, This action is a scire facias on a mortgage in which the mortgagor and his vendee are the defendants. The court below made absolute a rule for judgment for want of a sufficient affidavit of defense and entered judgment for the full amount of the plaintiff’s claim. The defendants have appealed. . The affidavit of defense and supplemental affidavit of defense denied the right of the plaintiff to recover any sum whatever, and set up as a defense fraud, failure of consideration and set-off. While the affidavits are open to some of the many criticisms, notably a lack of clearness and conciseness, suggested in the argument of the learned counsel of the plaintiff, yet we think their averments are sufficient to send the case to the jury. We are satisfied from the allegations in the affidavits that a correct decision of the questions arising in the case requires a consideration of all the facts, and they can only be ■ developed [285] and disclosed on a trial before a jury. As said by the late Chief Justice Green in reversing the trial court for entering judgment for want of a sufficient affidavit of defense in Comegys v. Davidson, 154 Pa. 584: “We will not discuss or presume to decide the merits of the present case. That can only be determined when all the facts are known. But we are of opinion that the affidavits of defense disclose facts enough to carry the case to the jury. ... We reverse the judgment of the court below to enable the defendant to lay his facts before a jury and have a judgment of the law upon them when they are all known.” The assignment of error is sustained, the judgment is reversed and a procedendo awarded.