Wilson v. Bryn Mawr Trust Co. ( 1909 )

Opinion by

Mr. Justice Potter,

We have here the appeal of the plaintiff, from the same judgment as that from' which we have just considered the appeal of the defendant, the Bryn Mawr Trust Company. Upon the motion of the plaintiff, judgment for want of a sufficient affidavit of defense was entered for the sum of $11,240.99, the amount of the purchase money paid by the plaintiff and his conveyancing expenses, with leave to proceed to trial before a jury for the balance of the claim.

This would involve the determination of questions of fact, and the rule for judgment seems to us to have been properly disposed of, by the court below. 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.

In Ætna Ins. Co. v. Confer, 158 Pa. 598, Justice Dean said (p. 604): “It must be a very plain case of error in law, if we sustain appeals in such cases as this, from the decree of the common pleas discharging the rule. The decree being interlocutory, no injury can result to the complaining suitor other than delay of final judgment. Besides, it is doubtful, whether the act of assembly authorizing these appeals has not, on the whole, aggravated delay.”

In Paine v. Kindred, 163 Pa. 638, Justice Green, after quoting the above language, said (p. 643): “We do not mean to interfere where rules for judgment have been discharged in the lower courts, in doubtful and uncertain cases, but only in such as are very clear and free of doubt, as we have frequently said.”

In Security S. & L. Assn. v. Anderson, 172 Pa. 305, it was said, per curiam (p. 307): “We are all of opinion that the rule for judgment was rightly discharged. But, assuming for argument sake, that the action of the court was at least doubtful, the result is the same. As was said in Griffith v. Sitgreaves, 81* Pa. 378, the act referred to 'was intended to reach only clear cases of error in law, and thus prevent the delay of a trial.’ Much valuable time is lost and expense incurred in endeavoring to convict the court below of manifest error in cases where at most there is merely a doubt as to the correctness of its decision. In such cases it is useless to insist on a reversal.”

In Kidder Elevator Interlock Co. v. Muckle, 198 Pa. 388, it was said, per curiam (p. 390): “An order discharging a rule for judgment for want of a sufficient affidavit of defense will not be reversed by the Supreme Court in doubtful and uncertain cases, but only such as are very clear and free of doubt.”

In the present case we cannot say that the right of the plaintiff to recover a larger sum than that for which judgment was entered, is clear, or free from doubt. The assignment of error is therefore overruled, and the judgment is affirmed.