Wernet's Appeal , 1879 Pa. LEXIS 343 ( 1879 )

Mr. Justice Mercur

delivered the opinion of the court,

This is an appeal from the refusal of the court to open a judgment entered against Wernet by confession. The affidavit on which the rule to show cause was granted alleged lunacy of Wernet, and 'that the judgment ivas wholly without consideration. On the hearing, no evidence was given tending to show want of consideration, but it all related to the question of lunacy. The judgment was confessed and entered on the 16th September 1875.

The appellant gave in evidence the record of an inquisition taken at Pittsburgh, on the 3d of May 1878, which found Wernet was then a lunatic, and had been so for the space of twenty-eight years last past, and did not enjoy lucid intervals. In addition to the inquisition and evidence returned therewith, the evidence of other witnesses, was given, tending to show imbecility of mind caused by intemperance.

It appears that Wernet was a native of this county, but had been absent from the country, and residing in Australia for some twelve years prior to the summer of 1875. The evidence of some of the witnesses was based on their knowledge of him prior to his departure; others, on knowledge acquired after his return. It does not appear that any of them saw him during his absence.

The consideration on which the judgment sought to be opened was based was a judgment entered in the Supreme Court of the colony of Victoria, Australia, for 2000Z. sterling, in favor of the appellee against Wernet. An exemplified copy of the record of the judgment was duly certified under the official seal of said court and by the U. S. Consul-General at Melbourne. The record, however, fails to show any service on Wernet, or any appearance by him. It therefore lacks the essential element to give it the binding force of a judgment here. This is conceded, hut the appellee shows the distinct admission of Wernet as to a valid consideration. On his return here, he admitted to Mr. Scully, a reputable person of this city, to whom the exemplified copy of record had been sent, that while in Australia he married a widow, Mrs. Dalton, who had two or three children; that he had obtained about 2000Z. from her, and squandered it, and that she was then dead. Upon showing Wernet the exemplification of record, he said it was all right, and expressed his willingness to have it entered up. With this view and purpose Mr. Scully accompanied him to the office of Mr. Acheson. They there ascertained that a judgment could not be entered by filing the exemplified record. This resulted in filing a precipe for a summons, and in Wernet’s waiving the issuing thereof, and confessing judgment.

The inquisition was found more than two and a half years after the judgment was confessed. It was therefore prima facie evidence only of his incapacity to confess the judgment. To rebut that presumption, and to prove he had a lucid interval when he signed the confession, two reputable and uncontradicted witnesses testified substantially, that he was at the office of Mr. Acheson from a half hour to an hour; that he exhibited no indication of being intoxicated, either by looks or conversation; that he fully understood what he was about; acted intelligently and was perfectly competent; he distinctly admitted his indebtedness, and expressed a desire to save costs and to accept service of the writ. He accompanied one of the witnesses to the prothonotary’s office, and several times afterwards expressed to the other one his satisfaction that it had been fixed. The appellee was one of his step-children, and Wernet was willing to secure the money to the parties in whose favor the Australian judgment was rendered. Conceding that the proper form of the suit in Australia should have been in the name of the personal representative of the decedent, yet that did not preclude him from confessing a judgment to the surviving child, if the others were dead, or if living, to this one under such an arrangement as was satisfactory to Wernet. We have several times decided lately that, on an application to open a judgment, it is proper for the court to weigh the evidence and to decide according to the preponderance thereof, and we will not reverse for the exercise of a sound discretion.

In this case the preponderance of testimony established the competency of Wernet at the time he confessed the judgment, and the learned judge committed no error in refusing to open it.

Decree affirmed, and appeal dismissed at the costs of the appellant.