3 Sadler 346 | Pa. | 1886
Opinion by
For reasons given by the learned president of the common pleas, the applications to open the judgment in question and execution were rightly refused. It appears that on application of defendant, in 1883, a rule to show cause why the judgment should not be opened and defendant let into a defense was granted and execution stayed in the meantime. This application was grounded on failure of the consideration for the judgment.
After more than a year had elapsed, without any effort on the part of defendant to substantiate the allegations of fact upon which the rule was based, he voluntarily withdrew his application, and nothing more was done until October, 1885, when the second petition, containing substantially the same averments as to failure of consideration, together with additional allegations of fact not embodied in the first application, was presented and refused. This was supplemented by application of Mr. Whitehead, terre-tenant of part of the premises affected by the judgment, and that was also refused.
It cannot be claimed that it was the duty of the court to entertain defendant’s second application for any of the causes alleged in the first petition. As to those matters he had his day in court and voluntarily withdrew therefrom; and has, therefore, no right to complain of the refusal of the court to afford him a second opportunity of being heard on the same subject, and thus further delaying the process of the court. As to the additional allegations of fact contained in the second application of defendant and the affidavit of Whitehead, there is nothing that made it incumbent on the court to open the judgment for the purpose of letting defendant or his assignee into a defense. If there is any merit in either of the additional allegations of fact, the only possible bearing it could have would be on the question of how much, if anything, should be credited on the judgment. If there is any foundation for such an inquiry, the question can be disposed of without opening the judgment. To justify the opening of a judgment entered on warrant of attorney or by confession, it should appear that the judgment was originally confessed for more than, in equity and good conscience, was then owing by the defendant therein. It is clearly shown, however,
Decree affirmed and appeal dismissed, at the costs of appellant.
