Cinnaminson Park Co. v. Laws

63 Pa. Super. 189 | Pa. Super. Ct. | 1916

Opinion by

Kephart, J.,

The plaintiff brought suit to recover an amount due on a stock subscription. Judgment was entered for failure to file an answer. An attachment was issued directed to the Western Saving Fund Society, where the defendant had moneys on deposit. A petition was then presented asking that the judgment be opened and the defendant be permitted to make a defense. The court made an order directing the judgment to be opened and upon terms that three hundred dollars be impounded to satisfy any judgment that might be recovéred against the defendant.

It has been repeatedly held that applications such as this are equitable proceedings and addressed to the sound discretion of the court: Italian, Etc., Bank Assn. v. La Spada, 58 Pa. Superior Ct. 576; Colguhonn v. Manufacturing Co., 62 Pa. Superior Ct. 85; Kaier v. O’Brien, 202 Pa. 153. To secure favorable consideration of such application there should be presented some meritorious circumstances calling for equitable relief in addition to a good defense. The defendant bad employed and paid counsel to look after bis case; bis counsel failed to attend to bis duty and tbe only knowledge of an adverse judgment was when be was notified about tbe attachment proceedings. Thereupon be immediately presented tbe application above mentioned to tbe court below. A careful examination of tbe evidence submitted in behalf of the petition to open tbe judgment shows that if it were believed by a jury a verdict on it would be sustained. If tbe defendant has paid for bis stock subscription as claimed or if tbe stock subscriptions were secured through fraud, be should not be called upon to pay tbe amount of tbe claim. Tbe court in opening tbe judgment and in protecting tbe plaintiff by tbe order made did not abuse its discretion.

Tbe assignments of error are overruled and tbe order is affirmed at tbe cost of tbe appellant, and a procedendo awarded.