215 Pa. 558 | Pa. | 1906
Opinion by
Joseph Wolf, the appellee, appealed to the Superior Court from the refusal of the court of common pleas of Fayette county to open six judgments that had been entered against him by Jasper Augustine, the appellant. By a stipulation filed the six appeals were heard together. The Superior Court affirmed the order as to one of the judgments and reversed as to the other five, reinstating the rules to open and making them absolute: Augustine v. Wolf, 29 Pa. Superior Ct. 336.
The applications to open the judgments were disposed of by the court below on the petitions of the defendant, the answers of the plaintiff and depositions taken by each side. On the appeal to the Superior Court no exception was taken by Wolf to the material facts stated by the court below in the opinion discharging the rules; and there is no complaint of them here. The six judgments were entered against the defendant on March 6,1894. About the same time and to the same term ten other judgments were entered against him in favor of the same plaintiff. On January 11, 1895, Wolf filed a bill in equity in the court of common pleas of Fayette county, alleging that Augustine had been guilty of fraud upon him in transactions covering a period of many months, and the said ten judgments were selected and specifically set forth as those against which he had a defense. None of the six judgments under consideration were complained of in the bill, though they had been entered more than ten months before it was filed. The complaint of Wolf as to the judgments entered against him by Augustine was confined to the other ten. In 1899 a writ of scire facias was issued upon each of the six judgments before us. To each writ an affidavit of defense was filed, in which Wolf alleged that the judgment was involved in the equity proceedings, which were still pending and undecided. No other defense was set up. About two months after the decree in the equity court was affirmed by this court, Wolf filed supplemental affidavits of defense in the suits brought to revive the judgments, in which he alleged that he had intended to include them in the equity proceedings, and was advised and believed that they were covered by the general finding of the referee, that he did not know whether he had executed the notes or not and could not say until he saw them. On February 25,1902, almost three
In the opinion of the Superior Court it is stated that “ the defendant should be allowed a trial where he has shown by á preponderance of evidence sufficient to sustain a verdict in his favor, that he has a just defense.” No such preponderance in favor of the defendant appears in the present case, and his counsel did not attempt, either before us or in the Superior Court, to call attention to it. On the contrary, as to the charge of forgery, upon which allegation the five judgments were directed to be opened by the Superior Court, the court below said: “ The allegation of forgery, if promptly made and supported, would be all sufficient to warrant the opening of these judgments. In the present case, however, it is scarcely hinted at until the time came for taking testimony in support of the rules to show cause. The petitioner, Wolf, after an inspection
That the legal discretion of the court below was not improperly exercised is clear and, if it was not so exercised, its
The order of the Superior Court is reversed and the order of the court below in refusing to open the judgments Nos. 4, 5, 7, 9 and 11 to June Term, 1894, is affirmed in each case at the cost of the appellee.