182 Pa. 442 | Pa. | 1897
Opinion by
This proceeding was an application by petition to the court below to strike off or open a judgment. The plaintiff in the judgment is S. B. Heist and the defendant Esther Tobias. The defendant set forth certain facts in her petition affecting the giving and entering of the judgment, and the purpose it was intended to subserve, which if true entitled her to the relief she asked. A very considerable amount of testimony was taken on both sides, under the rule to show cause, and the application was disposed of by the learned court below upon the views
It will be perceived that what we consider of controlling importance in the contention, is the question as to what was the agreement upon which the judgment was given. The parties to that agreement, necessarily, were the plaintiff, S. B. Heist, and the defendant Esther Tobias. It was the plaintiff who received, and the defendant who gave, the judgment, and if there
Miss Clara E. Tobias, a daughter of the defendant, was examined at some length as to the main facts of the transaction. As to the giving of the judgment she was asked: “Q. When they came back to Grant’s office from the bank, when your mamma signed the judgment note, what did they say to her about that? A. Mr. Heist spoke to mamma and I alone. He said ‘ Mrs. Tobias, when the note in the bank is paid I will be released, and I will see you released.’ He said ‘ this is only given for security for me.’ He only asked her for himself. Q. Then your mother signed the judgment? A. Yes, sir, she signed the judgment note.”
P. F. Murray, one of the bondsmen for Grant Tobias to the Insurance Company, was examined and testified in relation to the giving of the $900 note in bank and as to what was said by Broadhead in regard to his paying it off, and was asked: “ Q. Now about the judgment Mrs. Tobias gave to Heist, what was that given for, what was said at the time? A. Well if that was the note you. have reference to, they wanted me to go on, it was given to pay the insurance company shortage, the bank note. Q. Was there anything said about a judgment being given by Mrs. Tobias to Mr. Heist? A. Yes, sir, Mr. Heist was to be secured by Mrs. Tobias. Q. For his indorsement? A. Yes, so he would be perfectly safe.”
S. S. Smith, cashier of the Linderman National Bank, testified in regard to the discount of the $900 note by the bank, and was asked: “ Q. There was a judgment note given by Esther Tobias to S. B. Heist? A. Yes, Heist did not want to go on the note, and she gave him a judgment note to secure his indorse
Mrs. Esther Tobias, the defendant, was asked: “ Q. Then after you indorsed that bank note you executed a judgment note to Mr. Heist for $900? A. Yes, sir. Q. You may state Avhat that judgment note was given for ? A. It was to secure Mr. Hoist. Q. For what? A. For the note in the bank. Q. What did Heist say to you when he asked you to sign that judgment note? A. He said when the note was paid he would be released and Avould release me.”
S. B. Heist, tlie plaintiff in the judgment, being examined for the appellee, Avas asked: “ Q. At the time when you agreed to indorse that note in the bank you took from Mrs. Tobias a judgment note to secure you? A. Yes. Q. That note was given to you to secure that indorsement? A. To secure me I presume. It was on the strength of that I indorsed the note. . . . . Q. That judgment was given to you to secure you for that indorsement on the note in bank, and for no other purpose ? A. That is why I went on the note, because they gave me security I thought sufficient. Q. For the indorsement? A. Yes, sir. Q. That was the only purpose that note was given to you for? A. Yes, sir. . . . Q. You would not have gone on that note as an indorser Avithout a.security ? A. Oh, no.”
It must now be observed that the foregoing is the whole of the testimony in the cause Avliich relates directly to the fact of the giving of the judgment. It is the testimony of no less than six witnesses, every one of whom was disinterested except the defendant. It is entirely uncontradicted by any witness. It is absolutely uniform in its substance, and it establishes beyond all controversy the proposition that the judgment Avas given for the one, sole, exclusive purpose of securing Heist, the plaintiff in the judgment, against liability by reason of his indorsement. He so testifies himself. This being so, it must be further considered that it was not given as indemnity against the debt itself, it was not given as security that Grant Tobias, the maker of the note, would pay the note. There was an abundance of testimony in the case that W. F. Broadhead agreed to raise the
The judgment is reversed, the rule to show cause why the judgment should not be opened is made absolute at the cost of the appellee, and the record is remitted fur further proceedings.