Bank v. Fulmor

Citations

• 124 Pa. 337
• 17 A. 2
• 1889 Pa. LEXIS 1039

Syllabus

<p>1. An application to open a judgment, entered on warrant of attorney or on a judgment note, is addressed to the equitable powers of the court below, and upon an appeal to the Supreme Court, under the act of April 4, 1877, P. L. 53, the question is, whether the court below rightly exercised its discretion upon the evidence.</p> <p>2. It is a mistake to suppose that the court to which the application is made cannot judge of the weight of the evidence and the credibility of the witnesses, but, in every case where there is a conflict of testimony, must send the case to a jury.</p> <p>3. While the precise measure of proof which should move a ohan-1 cellor to open a judgment is not laid down, yet he may not act at allj unless there is more than oath against oath, and, when there is morelhau' this, and it comes to a question of the weight of the evidence, it is for him to decide as to which side the scales incline.</p> <p>4. If in doubt upon this question, or as to the credibility of the witnesses, and if the testimony taken would justify a submission to a jury, the court in its discretion may make an order to open and for an issue, but if on the testimony so taken the court would set aside aj verdict for the defendant, the application to open should be refused. j</p> <p>5. Where on a petition praying that an execution be stayed a,nd the) judgment opened, it is ordered, after hearing on the testimony taken, that the execution and levy be suspended and an issue directed to determine whether the judgment is satisfied or not, no appeal will lie from such order under the act of April 4, 1877, P. L. 53.</p> <p>6. But if such order is followed by a verdict of the jury upon the issue, that the judgment in question is satisfied, the entry of judgment upon the verdict is the first step in the cause to which appeal or writ of error will lie, and, as in this ease there was sufficient evidence to submit to the jury and to sustain their verdict, the submission of the ease to the jur