209 Pa. 511 | Pa. | 1904
Opinion by
In the estimation of counsel for the appellant, one of the principal questions involved in this appeal is the effect of a plea of payment, to a judgment opened upon petition, for the purpose of determining the amount due upon it. Of course, if when the judgment was opened, the defendant had pleaded payment, with no other plea, it would have constituted a confession of the cause of action upon which the judgment was entered ; and the record of the judgment would have been prima facie evidence of the right of the plaintiff to recover the amount of the bond. But we do not find from the record that any plea to the judgment; was ever filed. It does appear, and the auditor has found as a fact that the judgment was declared in the court of common pleas to have been fraudulently confessed for the purpose of depriving the widow of her dower rights. But as to the daughter, that verdict was not conclusive. But the record further shows that upon the petition of the daughter and the widow, setting forth that the judgment was only collateral, and praying that it be opened, and they be allowed to defend against it, the court did grant a rule to show cause why the judgment should not be opened. Subsequently the matter was referred to an auditor, and the following agreement was entered of record, March 19, 1901: “ It is admitted by all the counsel present, that the judgment to April term, 1895, No. 851, and the revival thereof by sci. fa. to January term, 1901, No. 58, shall be opened for the purpose of determining how much -is due thereon and that the auditor in the orphans’ court in the estate of Hiram K. Miller shall inquire and determine how much is due thereon, if anything, subject to all the rights of all the parties that they would have in a trial and determination of that fact by a jury.”
The auditor appointed by the orphans’ court in this proceeding was the same gentleman who was appointed as auditor by the court of common pleas to report upon the petition for the opening of the judgment. The attitude in which the case then stood is shown by the following extract from the auditor’s report:
“ In the present case, the judgment was opened to find what is due on it by decree made on the agreement of the parties, they each reserving for themselves all the rights they would
We agree with the conclusion of the auditor that, when the judgment was.opened, and was shown to be collateral only, the burden of proving what if anything it stood for, was upon the creditor whom it was intended to secure. The record in the common pleas showed that this judgment in so far as the rights of the widow were concerned, bore the brand of collusion and fraud, and this might well lead to an order for its opening to a defense in the interest of the daughter free of all restrictions. We can see nothing in the record to justify, and are therefore at a loss to understand the concession in the opinion of the orphans’ court, that the pleas admitted the judgment, and that the judgment was opened upon terms. If this were true the position taken by the auditor would have been wrong. Our' examination of the record leads us to think that the auditor was right, in holding that the opening of the judgment by the court of common pleas was without restrictions. And that being so, under the well known rule, the burden of proof was upon the plaintiff as in all other cases.
It is true that a writ of scire facias to revive the judgment was issued, and to that writ a plea of payment was filed. . But that proceeding went no further. It was entirely separate and
This disposes of the principal question raised by this appeal. Into the numerous instances wherein it is alleged that errors were made in the findings of fact by the auditor, and approved by the court below, we cannot enter. There was evidence to support the findings, and the exhaustive report of the learned auditor shows that it received careful consideration.
The assignments of error are all dismissed, and the decree of the orphans’ court is affirmed at the cost of the appellant.