196 Pa. 243 | Pa. | 1900
Opinion by
Michael J. Scanlon was collector of taxes for the borough of Shenandoah for the tax years 1895 and 1896, and gave bond for each year in the penal sum of $100,000, conditioned for the faithful performance of his duty. According to a special act of assembly applicable to Schuylkill county, that of February 17, 1859, the bonds contained powers of attorney to confess judgment ; they were approved by the court, and filed in the court of quarter sessions. Both bonds were certified by the clerk of the quarter sessions into the court of common pleas, and judgments entered thereon against Scanlon and his sureties, and notice thereof given to the latter. The appellant, Mary Mellet, one of the sureties, responded in writing, denying that she had executed the bonds. Soon after she presented her petition to the common pleas, for rule to open judgment and have them stricken from the record; no answer was filed, and the court granted the rule; depositions were taken on both sides; after full hearing, the court in opinion filed, discharged the rule. From that decree we have this appeal.
Before the acts of April 4, 1877, and May 20, 1891, no appeal from the decree refusing to open the judgment would have been entertained by this court; since these acts the losing party
Take the facts in the case as to the bond of 1895; on its face, it is sealed by Mary Mellet, and signed by her mark, is witnessed by Matt Giblon, is dated June 7, 1895; then same day is formally acknowledged before J. A. Toomey, a justice of the peace, who certifies that she acknowledged the execution of her bond by making her mark. No higher proof of the fact of execution could have been adduced. Appellant flatly denies her signature ; in other words, alleges it to be a forgery. To constitute it a forgery, there must have been a criminal forger acting in collusion with the attesting witness and the magistrate who by his certificate took her personal acknowledgment. The whole burden of proof is upon her, to at least raise a doubt, as to the genuineness of her signature, and this by competent evidence which the court would feel bound to submit to a jury. She denies the signature; her age is sixty-two years; more than three years after the date of the bond, she testifies positively, that she neither signed it in presence of Giblon nor acknowledged it before Squire Toomey. Some one must have had a motive for the forgery. In the argument, Scanlon, the tax collector, is indicated as the forger; it is urged, it was to his interest to have an apparently properly executed bond with sufficient sureties, that he might qualify for the office of collector, and therefore, he forged the name of appellant, who is his relative. Scanlon, however, testifies just as positively, that at his request, Mrs. Mellet signed the bond, and that she did so in his presence. Giblon, the witness, testifies to the genuineness of his signature, but has no recollection of putting his name on the paper in her presence. Squire Toomey does not remember, independently of his certificate, that he took the acknowledgment, but says he must have taken it, or his certificate would not have been on the bond. Ought not this evidence to be conclusive on the