Duane v. Addicks

Citations

• 155 Pa. 124
• 25 A. 895
• 1893 Pa. LEXIS 1201

Syllabus

<p>Judgment—Practice—Opening judgment—Act of May 20, 1891—Collat-eral securities.</p> <p>Upon a motion to open a judgment entered on a bond and warrant of attorney it appeared that plaintiff, the holder of certain mortgages, held also as collateral security the bond and warrant of a third party not the mortgagor for a large sum of money conditioned for the payment of the principal and interest of said mortgages. Upon default in payment of the interest in 1878 he sued out the mortgages and issued execution upon the judgments obtained thereon, and also entered judgment upon the collateral bond. Prior to the sheriff’s sale he entered into an agreement with a third party, a stranger to the original transaction, that such third parly should buy the properties, pay all the costs, and upon obtaining title should execute two new mortgages upon the premises purchased to plaintiff, he agreeing not to bid at the sale and assigning to the purchaser the judgment obtained upon the bond held as collateral. Held, that the order of the court in 1892, opening the judgment entered upon the collateral bond and directing a jury trial, was within the discretion of the court below and would not be reversed.</p> <p>It seems that the order of court opening a cautionary judgment will not be reversed upon the ground of delay in making the motion, as such judgments are under the control of the court in which they are entered.</p>