Mancia v. Marquette National Fire Ins.

Per Curiam,

The court below refused to make absolute plaintiff’s rule for judgment for want of a sufficiént affidavit of defense; hence this appeal.

The action was brought to recover on a fire insurance policy which, the affidavit avers, had been cancelled by defendant and surrendered by plaintiff some three months prior to the fire in question. If the sufficiency of these averments was the only question involved, we would hold the present appeal to be governed by the usual rule, announced as early as Griffith v. Sitgreaves, 81* Pa. 378, to the effect that writs under the Act of April 18, 1874, P. L. 64, should be confined to clear errors of law (Baker L. & T. Co. v. Diehl, 253 Pa. 353), and, unless the action of the court in refusing judgment is manifestly wrong, in the sense of being contrary to precedent or established rules of law, the order appealed from will not be' disturbed (Haibach C. Co. v. Hornung, 270 Pa. 350); but it appears the defense was sworn to by an individual without showing his connection with defendant company, what his agency or authority was, or why an officer of the corporation did not act in the premises, —which, under our decisions, renders the affidavit invalid : Mintz v. Tri-County Nat. Gas. Co., 259 Pa. 477, 483-4, and authorities there cited.

Appellees apparently recognized the fatal defect just referred to; and, to overcome it, asked leave to file, at the bar of this court, another affidavit of defense. While we refuse this application, as not being in accord with correct practice, the order about to be entered will not preclude the filing in the court below of the affidavit tendered to this court; but, before that is permitted, defendant should be ordered to pay costs to date.

In conformity with the requirements of the Act of 1874, supra, as to the disposition to be made of an appeal where the Supreme Court deems an affidavit of defense “insufficient to prevent judgment,” it is now ordered, in the language of the statute, that the record be remitted to the court below with direction to enter judgment against defendant for such sum- as to right and justice may belong, unless other legal or equitable cause be shown why such judgment should not be entered.