Opinion
March 21, 1933.
April 24, 1933.
Judgments — Opinion — Discretion of court — Evidence — Consideration by court below — Review by jury — Appeal.
1. An order opening judgment will not be disturbed on appeal unless an abuse of discretion is clearly shown. [143]
2. An order opening judgment on a note will not be disturbed where the lower court, after argument and re-argument and careful consideration of all the testimony, states that all of the testimony of plaintiff should be very carefully scrutinized by a jury and cites examples of contradictory and seemingly evasive testimony which tend to indicate that the minds of the parties had never met on the alleged contract in connection with which the note was given. [143]
Before FRAZER, C. J., SIMPSON, KEPHART, SCHAFFER, MAXEY, DREW and LINN, JJ.
Appeal, No. 74, March T., 1933, by plaintiff, from judgment of C. P. Westmoreland Co., Aug. T., 1929, No. 67, sur judgment Aug. T., 1928, No. 822, in case of J. P. Sirant v. Stanley Solkosky, alias Stanley Sunkosky, alias Stanley Sukosky. Affirmed.
Rule to open judgment. Before WHITTEN, J.
The opinion of the Supreme Court states the facts.
Rule discharged. Exception to decree sustained by court in banc. Plaintiff appealed.
Error assigned was making rule absolute, quoting record.
Carroll Caruthers, with him John P. Madden, for appellant.
James Gregg, of Gregg Gregg, for appellees.
Argued March 21, 1933.
Plaintiff appeals from an order of the court below making absolute a rule to open judgment on a note given to him by defendant in connection with a real estate transaction.
The petition to open the judgment alleges that the note was obtained through fraud and at a time defendant (petitioner) did not understand what he was doing because he was unable to read or write English, and also because plaintiff (respondent) had caused him to become excessively intoxicated. By consent of the parties, testimony in the matter was first taken by a commissioner, who filed a report recommending that the rule be discharged. Exceptions to the commissioner's report were filed and heard by one of the judges of the court below, who sustained the commissioner's findings and discharged the rule. On exception to this decree, the rule was ordered re-argued by the court in banc, which entered an order making the rule to open the judgment absolute. It is from this ruling plaintiff now appeals.
The opinion of the court in banc states: "A reading of the [plaintiff-respondent's] entire testimony. . . . . . leads us to the inevitable conclusion that all of his testimony should be very carefully scrutinized by a jury," and cites examples of contradictory and seemingly evasive testimony which tend to indicate that the minds of the parties had never met on the alleged contract in connection with which the note here in question was given. It is a well established rule that an order opening judgment will not be disturbed unless an abuse of discretion is clearly shown. See Helzlsouer, to use, v. Golub et al., 306 Pa. 474, 475, and cases there cited. No such abuse is shown in the present instance; on the contrary, the court below evidently acted only after argument and reargument and careful consideration of all the testimony.
The order is affirmed.