Heist v. Tobias

Citations

• 182 Pa. 442
• 38 A. 579

Syllabus

<p>Judgment — Striking off judgment — Practice, G. P.</p> <p>A judgment which is regular in every respect, and which was entered in accordance with the intention of the parties, cannot be stricken off, upon motion.</p> <p>Judgment — Opening judgment — Evidence—Practice, G. P.</p> <p>The rule that the opening of judgments is a matter largely within the discretion of the court in which the application is made, and is not to be reviewed on appeal, except for plain error, will not be strictly applied where the opinion of the court below is not based upon a consideration of the credibility of witnesses, but is rather founded upon certain legal and equitable aspects of the case.</p> <p>On a rule to open a judgment it appeared that the note was given by the defendant to the plaintiff to secure the latter against any liability arising from the mere fact of his indorsing a promissory note made by defendant’s son, and not as an indemnity against the debt represented by the promissory note, nor as security that the maker of the promissory note would pay the note. The promissory note was subsequently paid by a third person, in consideration for which the plaintiff assigned the judgment. There was no evidence that the defendant had ever agreed that the judgment should be used for any such purpose. Held, that defendant was entitled to have the judgment opened and an issue framed ; and if such facts were established on the trial of the issue, the defendant was entitled to binding instructions.</p>