Cloud v. Markle

Citations

• 186 Pa. 614
• 40 A. 811
• 1898 Pa. LEXIS 1049

Syllabus

<p>Judgment — -Opening judgment — Evidence,</p> <p>An application to open a judgment entered upon a judgment note must un<^er facts developed in this case be supported by clear, precise and positive testimony, which should not be doubtful in character, and it must establish either that there was fraud, accident or mistake in the creation of the instrument itself, or that there bad been an attempt to make a fraudulent use of the instrument in violation of a promise or agreement made at the time the principal contract was made, and without which, it would not have been executed. While a judgment should not be opened, as a general rule, upon defendant’s oath alone where he is contradicted by the testimony of the plaintiff, yet where there are corroborative circumstances, or circumstances from which inferences may be drawn corroborating the defendant, it is proper to open a judgment and refer the question to the jury.</p> <p>On an application to open a judgment it is proper for the court to-weigh the evidence and decide according to the preponderance thereof; and where the court, below has refused to open a judgment, the Supreme Court will as a rule determine only whether the discretion of the court below has been abused or improperly exercised.</p> <p>Judgment — Opening judgment — Bond—Mortgage—Parol evidence.</p> <p>A judgment entered on a judgment bond, given for the purchase of real estate, should be opened, on application, where the evidence for the defendants is olear and precise, and tends to show that at the time the judgment bond and the mortgage which accompanied it were given there was a verbal agreement made between the parties that if the defendants were unable to keep the property they should have the right to rescind the contract, reconvey the title, surrender the possession of the property, and thereupon have the bond and mortgage returned; and that subsequently the defendants, finding themselves unable to pay for the property, moved out and surrendered