First National Bank & Trust Co. v. Desaro

ENGLISH, PJ,

dissenting:

Plaintiffs filed no pleading of any kind in response to defendant’s petition in tbe nature of a writ of audita querela. Tbe trial court, nevertheless, proceeded witb a bearing on tbe apparent assumption that tbe sufficiency of tbe petition bad been put in issue as though by motion to dismiss. In any event, tbe facts set forth in tbe petition were not contravened, in tbe trial court or here, by pleading or otherwise, and must, therefore, be considered as true.

Tbe petition alleged that for some 17 months after entry of judgment for possession defendant bad continued in…