Gilmore v. Alexander

Citations

• 268 Pa. 415
• 112 A. 9
• 1920 Pa. LEXIS 710

Syllabus

<p>Judgment — Payment—Presumption—Evidence—Burden of proof —A tlachment execution — Lien—Dissolving—Practice—Pleadings —A dmissions.</p> <p>1. In a proceeding to collect a judgment over twenty years old, tlie burden of proof is on plaintiff to overcome the presumption of payment.</p> <p>2. In such case, where there is no question of the credibility of witnesses, the sufficiency of the evidence is for the court.</p> <p>3. The presumption is rebutted, or does not arise, where there is affirmative proof, beyond that furnished by the specialty itself, that the debt has not been paid, or where there are circumstances that sufficiently account for the delay of the creditor.</p> <p>4. The affirmative evidence may be direct or circumstantial, but must make a prima facie case of nonpayment, and so convincing as to justify a conclusion that the debt is not, in fact, paid.</p> <p>5. In passing upon the sufficiency of the testimony to rebut the presumption, the court must consider the united strength of all the evidence and circumstances, and each case depends largely on its own facts.</p> <p>6. The presumption of payment is strengthened by each year after the twenty.</p> <p>1. Where defendant in a judgment twenty-fbur years old, on which an attachment execution had been issued, petitions for a non pros, and dissolution of the attachment, instead of asking that the judgment be satisfied, and averring when an answer is submitted accounting for the delay and no part of the judgment had been paid, permits each averment tot go unchallenged by submitting the question to the court on the pleadings, his action is evidence tending to rebut the presumption of payment.</p> <p>8. In such ease, the fact that defendant does not testify, although in court on the trial in the attachment proceedings, does not affect the legal aspect of the ease, inasmuch as the burden is on plaintiff, and the court has to decide the case on the evidence of plaintiff, and not that of defendant.</p> <p>9. The st