Leavitte v. Drive-It-Yourself Co.

Argued November 12, 1925. This foreign attachment in assumpsit was issued to recover the price of certain sponges and chamois sold and delivered the defendant. The appeal is taken from the refusal of the court below to enter judgment for want of a sufficient affidavit of defense.

The Supreme Court has repeatedly said that an appeal in such case is intended to reach only clear cases of error in law and prevent the delay incident to a trial: Wilson v. Bryn Mawr Trust Co., 225 Pa. 143; Griffith v. Sitgreaves, 81 Pa. 378; Kidder Elevator Interlock Co. v. Muckle, 198 Pa. 388. In Holland v. Iron Works, 9 Pa. Super. 261, after referring to the above rule, we said: "Appeals, such as this, not infrequently result in greater delay than procedure in due course to a trial. They should not be encouraged."

After reading the statement of claim and the affidavit of defense, and giving full consideration to the argument of counsel for the appellant, we cannot say it is "clear and free from doubt" that the court below erred in the order complained of; and following the practice of the Supreme Court (Brown v. Unger,269 Pa. 471, 472; Snyder v. Baer, 282 Pa. 291, 292) we shall not discuss the facts or the applicable rules of law until called upon to do so after an opportunity is had to develop the former at trial.

The appeal is dismissed, without prejudice, etc.