Opinion by

We think the merits of this case can be better determined after the facts have been fully developed before the court and a jury. There are several important questions in the case, as suggested by the learned court, and some of these at least can be more intelligently ruled after the testimony has been heard. It may be that the essential facts will not be controverted or be conceded and the court can determine the issue as a matter of law without sending the case to a jury. We do not refuse judgment for the reason assigned in the opinion of the learned judge below which no doubt was hastily prepared and without an opportunity to consider fully the terms of the policy and the diffuse and somewhat involved affidavit of defense. We express no opinion on the correctness of the ruling of the court on the one point which was held to be sufficient to prevent judgment, leaving it and the other questions to be determined on the trial of the cause in the Common Pleas.

Had a motion to quash this appeal been made, it must have prevailed. There is only one assignment of error and it does not comply with the rules of court. It al*225leges the court erred in discharging the rule for judgment instead of setting out in terms the order of the court, as we have time and again ruled should he done.

The order is affirmed.