145 Pa. 8 | Pennsylvania Court of Common Pleas, Fayette County | 1892
Upon its admitted facts this is an extremely hard case. The story of the appellant, as set forth in his petition to open the judgment, is substantially as follows:
That about four years prior to his application to have the judgment opened, he purchased of the plaintiff, Dr. H. G. Lomison, for the sum of §7,500, a farm situated in Upper Tyrone township, Fayette county ; that the said Lomison desired him to sign a judgment note for §6,500, as security for the unpaid portion of the purehasé money; that he refused to sign such an instrument, stating at the time to Lomison that he would give no other security for said balance of the purchase money than the land so purchased; that the plaintiff then said he would go to his lawyer and have a mortgage prepared ; that a mortgage and a judgment bond were accordingly prepared, and were both signed by the petitioner; that when the petitioner signed the bond he believed it to be a part of the mortgage, and never supposed it was a bond that would give to the plaintiff a separate and independent lien on all his property, and that he would not have signed it had he so known; that he did not know that judgment had been confessed against him on said bond, or that such could be done, until the sheriff of the county
Upon the filing of the petition in the court below, the learned judge granted a rule to show cause why the judgment should not be opened, with a stay of proceedings. Upon the hearing of this rule, the allegation that any deception had been practiced upon the appellant, in regard to the nature or legal effect of the judgment bond, was flatly denied by the appellee, in which he was sustained to some extent by the gentleman who prepared the papers. On the other hand, there was nothing to sustain the appellant’s allegation but his own oath. There was therefore mei'ély oath against oath, with the presumptive evidence of the papers themselves in favor of the plaintiff, appellee. Under such circumstances, the court below could not have done otherwise than discharge the rule. How regretfully it was done appears from the concluding paragraph of the opinion of the learned judge. It is as follows :
“ The defendant has been sadly dilatory and negligent in the whole matter, but most probably his present unfortunate condition is to be attributed primarily to his lack of knowledge. He should be afforded relief, if a way for it can be found, and I have held the case this long in a vain endeavor to discover such way. I feel obliged, therefore, to discharge the rule; but do so in hope that the defendant will carry the case to the Supreme Court, and that that court will be able to point out some method by which the defendant may avoid this oppression.”
Affirmed.