Opinion
October 10, 1928.
November 14, 1928.
Judgments — Opening judgments — Evidence — Sufficiency.
A rule to open a judgment, entered by confession, is properly discharged, where the plea was payment by the defendant and the depositions in support thereof contained no evidence of such payment.
Appeal No. 137, October T., 1928, by defendant from judgment of C.P., No. 3, Philadelphia County, December T., 1923, No. 4063, in the case of G.C. Seidel v. G.C.S. Welzel.
Before PORTER, P.J., HENDERSON, TREXLER, KELLER, LINN, GAWTHROP and CUNNINGHAM, JJ. Affirmed.
Rule to open judgment. Before DAVIS, J.
The facts are stated in the opinion of the Superior Court.
The court discharged the rule. Defendant appealed.
Error assigned, among others, was the decree of the court.
Irwin L. Sessler, for appellant.
William H. Creamer, Jr., and with him Powell, Ludlow and Schaeffer, for appellee.
Argued October 10, 1928.
This appeal is from the refusal to open a judgment entered by confession. The petition to open, filed in 1924, avers that defendant had been indebted to plaintiffs' testator and to G.C. Seidel Company, Inc., and that he paid the indebtedness to both parties, including that for which the judgment note was given, by transferring to plaintiffs' testator certain shares of the capital stock of the corporation. The answer denied petitioner's averment. Depositions on the part of defendant were taken in April, 1924, but were not filed until February, 1928. As defendant is incompetent to testify to matters occurring between him and Seidel in Seidel's lifetime, it is perhaps not surprising to find the depositions bare of any suggestion that supports the averment of payment made in the petition to open. In the circumstances the court was bound to refuse the petition.
Order affirmed.