Schnebel v. Nelson

Citations

• 238 Pa. 341
• 86 A. 265
• 1913 Pa. LEXIS 968

Syllabus

<p>Judgments — Warrant of attorney — Mistake—Rule to open judgment — Discretion of court.</p> <p>1. On a motion to open a judgment entered by confession under a warrant of attorney contained in-a written indenture of lease between plaintiff as lessor and defendants as lessees, one of the defendants claimed that although he had signed as lessee, his liability was intended to be that of a surety, without averring in his petition any fraud, accident or mistake in the procuring or execution of the lease. The court, after hearing the testimony of both parties, dismissed the rule on the ground that the testimony on the part of the defendant was not sufficient to overcome the evidence of the written instrument. Held, no error.</p> <p>2. Upon a rule to open judgment the court to which the application is made may judge the weight and the credibility of the evidence and is not bound, even where there is a conflict of testimony, to send the case to the jury. The whole proceeding resolves itself into the exercise of a sound discretion which will not be interfered with on appeal except for abuse.</p>