161 A. 72 | Pa. | 1932
Argued March 16, 1932.
On June 12, 1926, judgment in the sum of $3,519.42 was entered by confession against John A. Marzolf and Charles Marzolf in favor of Robert E. Austen on a nonnegotiable judgment note dated February 1, 1926, payable ten days after date. On May 11, 1927, Charles Marzolf presented his petition alleging his signature was a forgery, made without his knowledge or direction and without consideration to him, and a rule was granted on the plaintiff to show cause why the judgment should not be opened as to Charles Marzolf and he permitted to defend. An answer was filed by plaintiff and testimony taken. The court refused to open the judgment and discharged the rule on April 18, 1928. On appeal by defendant to this court we reversed the order of the lower court and made absolute the rule to open the judgment: Austen v. Marzolf,
The case then proceeded to trial on May 1, 1931. Plaintiff introduced evidence of consideration to John A. Marzolf, the other defendant, and delivery by him of the note in question. There was also testimony of expert witnesses as to the genuineness of the signature of Charles Marzolf. The note in question was admitted in evidence over defendant's objection; in addition plaintiff attempted to introduce the record of the entry of judgment, but the trial judge properly excluded this under the authority of Harris v. Harris,
In refusing to take off the compulsory nonsuit the learned judge of the court below based his opinion chiefly on Sossong v. Rosar,
If plaintiff is put to proof of his cause of action precisely as if no judgment had been entered, it follows that the burden of proof is no greater than in an ordinary suit upon a promissory note where the defense is forgery. The burden is upon plaintiff to establish his allegation that the note in suit was signed by the defendant or by some one authorized by him: Shannon v. Castner, supra, page 330. Evidence by competent witnesses as to the genuineness of the signature raises a question of fact for the jury, and the note is then admissible in evidence: Depew v. Depew, 2 Sadler 117; Groff v. Groff,
These considerations relate only to the amount and nature of proof sufficient to raise a prima facie case for the jury. They do not affect the well established rule that, where the judgment has been opened generally, it is competent for defendant to make any legal defense: Whitmire v. Montgomery,
It should, perhaps, be remarked in passing, that much of the confusion present in the minds of both the judge and the parties, as to the proof required when a judgment is opened and an issue framed thereunder, could be obviated by the procedure indicated in Martin v. Kline,
For the reasons stated above, we are of opinion the assignment of error must be sustained.
The order of the court below is reversed and a venire facias de novo awarded.