Opinion
September 27, 1934.
November 26, 1934.
Practice — Judgment for want of sufficient affidavit of defense — Necessity of inquiry into facts.
Judgment for want of a sufficient affidavit of defense in a feigned issue directed by the court to determine the right to proceeds of insurance policies, is properly refused where the record presents issues which demand a broad inquiry into the facts and a trial upon the merits.
Argued September 27, 1934.
Before FRAZER, C. J., SIMPSON, KEPHART, SCHAFFER, MAXEY, DREW and LINN, JJ.
Appeal, No. 151, March T., 1934, by plaintiff, from judgment of C. P. Allegheny Co., Oct. T., 1933, No. 1026, in case of Fidelity Trust Company v. The Travelers Insurance Company. Order of court below affirmed.
Interpleader proceeding.
The opinion of the Supreme Court states the facts.
Rule for judgment for want of a sufficient affidavit of defense discharged, REID, P. J., GARDNER and McNAUGHER, JJ., in opinion by REID, P. J. Plaintiff appealed.
Error assigned, inter alia, was discharge of rule.
Joseph A. Langfitt, Jr., of Langfitt Langfitt, for appellant.
Charles B. Pritchard, for appellee.
The appeal in this case is from the refusal of judgment for want of a sufficient affidavit of defense in a feigned issue directed by the court below to determine the right to the proceeds of two insurance policies on the life of William Haxall Tenser, deceased. The insurance is claimed by both plaintiff and defendant; the insurance company admits its liability, and has paid the money into court pending the outcome of the suit.
We will not here discuss the questions involved. It is sufficient to say that the record presents issues which demand a broad inquiry into the facts and a trial upon the merits, and the court below properly held that the case must be submitted to a jury: Flinn et al., Exrs., v. 339 Fifth Ave. L. Co., 309 Pa. 247, 248; Farrell et al. v. N. Scranton B. T. Co. et al., 314 Pa. 29, 31; First Nat. Bank of York v. Bair et al., 315 Pa. 463, 464.
The order of the court below is affirmed.