Yost v. Mensch

141 Pa. 73 | Pa. | 1891

OPINION,

Mr. Chief Justice Paxson :

The case first above stated [No. 352] was an appeal from the order of the court below opening the judgment. The rule to open was obtained upon the petition, supported by affidavit, of Jacob G. Mensch, one of the defendants. The other defendant was his son, and the petition and affidavit certainly disclose a fraud practiced upon the petitioner in obtaining the judgment. It is not required that we should detail the particulars of the alleged fraud. The answer to the rule was in these words: “ The plaintiff above named, for answer to the rule granted upon the petition of the defendant, Jacob Gf. Mensch. denies the allegations in the said defendant’s petition contained.’’ The answer was not signed by the plaintiff; it was signed by his attorney, and was not accompanied by an affidavit.

Upon the hearing of the rule, the depositions of the petitioner and his wife were read in support of it, but not the deposition of any other person. A. B. Mensch does not appear in the case, and his whereabouts was unknown. The deposition of one of the plaintiffs was produced to sustain the judgment, but it does not touch the question of the fraud of A. B. Mensch in obtaining the judgment from his father.

It was contended that the court below erred in opening the judgment upon the testimony of the husband and wife alone ; that together they constituted but a single witness, under the authority of Sower v. Weaver, 78 Pa. 448, and Bitner v. Boone, 128 Pa. 567. The rule was also invoked that, to overcome the effect of a written instrument, on the ground of fraud, the evidence of the fraud must be clear, precise, and indubitable, and sustained by two witnesses, or by one witness with corroborating circumstances; and Phillips v. Meily, 106 Pa. 536; Sylvius v. Kosek, 117 Pa. 76; Knarr’s App., 19 W. N. 531, were cited in support of it.

No fault is found with the rule, nor with the authorities cited; but is it applicable to the facts of this case ? Throwing out of view, for the present, the question of the weight to be given to the testimony of the wife, under such circumstances, and treating the husband and wife as but a single witness, we have in addition the significant fact that the oath of the defendant is uncoutradicted. The answer, as already stated, is general, is not under oath, was not made by the plaintiffs, and does not deny a single specific allegation of fraud charged in the petition. Nor does the plaintiffs’ deposition deny the specific charges. It is not the case, therefore, of oath against oath, in which case the paper itself inclines the scale in favor of the party asserting it. As the case stood, we think the court below was justified in opening the judgment; and this appeal is dismissed, at the costs of the appellants.

The second appeal [No. 320] was from the trial of the feigned issue. The first four assignments of error do not conform to ■the rules of court, and will not be discussed.

■ The fifth assignment alleges that the court below erred in not allowing the plaintiff to prove the contents of a letter alleged to have been lost. The reason given by the learned judge ■below for excluding this testimony is entirely satisfactory.

The sixth and last assignment alleges that the court erred in not giving a binding instruction in favor of plaintiffs, as requested in their second point. Undoubtedly, had the evidence not been sufficient to satisfy his conscience, as a chancellor, that the note had been procured by fraud, the learned judge would have affirmed this point, and put an end to the case. We must assume that he was satisfied with its sufficiency. We cannot say he was wrong. The question of the effect of the wife’s testimony did not arise upon the trial, as a second, independent witness was called to corroborate the defendant. The weight to be attached to his evidence was for the jury and the court below. It would inaugurate a dangerous precedent for us to say they ought not to have believed him. If believed, it certainly tended to corroborate the defendant.

It will be observed that, up to this point, I have avoided any discussion of the rule alleged to have been asserted in Sower v. Weaver, and Bitner v. Boone, supra. The question of the effect of the wife’s testimony, in such cases, is not necessary to the decision of this case, and it has not been considered wise to' rule it now. In the present condition of the law of evidence, it is especially important; and we defer its decision until the question is squarely and necessarily raised, and we are aided by a further discussion. It is proper to say, however, that, in Sower v. Weaver, the husband and wife to some extent testified to independent facts necessary to sustain the defendant’s case, and that the testimony of the wife was not wholly in corroboration of the facts testified to by the husband. As to such facts, there was therefore but the testimony of a single witness, even if we regard them as two witnesses. This may have induced the remark of Justice Shabswood that, “admitting Weaver and his wife to amount together to one sufficient witness, where is the remaining witness, or that which is equivalent thereto ? ” It would be difficult to explain this remark except upon the theory I have indicated. It will be noticed that no authority was cited by Justice Sharswood for the position assumed. The remark of our Brother Clark, in Bitner v. Boone, was based wholly upon what was said in Sower y. Weaver; and the point decided was, that where the husband was an incompetent witness, the wife was also incompetent. The remark was merely used by way of illustration.

I have said this much in regard to these cases, not for the purpose of discussing them, nor as indicating either my own views or the views of the court upon this question, but as showing just how far the cases go, and that we are justified in regarding it as an open question; as one, at least, upon which the door is not yet closed for further discussion and consideration.

Judgment affirmed.