Ketcham v. Green

Opinion by Head, J., -The action was scire facias sur mechanics’ lien. An affidavit of defense was filed and thereafter the plaintiff took a rule for judgment for want of a sufficient affidavit. After argument and due consideration the rule was discharged and the plaintiff appeals. We have attentively examined the affidavit in the light of the Act of 1874 and the decisions of the courts construing it. The viewpoint of the appellate court, in such case, is well stated by our Brother Henderson in Fronefield v. Fry, 51 Pa. Superior Ct. 403: “The Act of April 18, 1874, P. L. 64, authorizing an appeal from an order of the court of common pleas refusing judgment for want of a sufficient affidavit of defense is applicable to clear cases only. It was not intended to impose on the appellate court the duty of drawing fine distinctions and to reach conclusions by subtle processes of reasoning.” It is again declared by Mr. Justice Potter in Wilson v. Bryn Mawr Trust Co., 225 Pa. 143: “We have often said that the ruling of the trial court in a case of this kind, will only be disturbed in cases where the statement of claim and the affidavit of defense, raise a pure question of law, and clear error has been committed.” See also Ætna Ins. Co., v. Confer, 158 Pa. 598; Paine v. Kindred, [371] 163 Pa. 638; Kidder Elevator Interioc. Co. v. Muckle, 198 Pa. 388. We are all of opinion the affidavit in the case at bar fairly discloses a defense sufficient to prevent a summary judgment and to carry the case to a trial in the ordinary course of procedure. In such cases the sound and well recognized policy of the appellate courts is to express no opinion on the merits of the ease. The appeal is dismissed at the costs of the plaintiff but without prejudice to his right, etc.