Harris v. Harris ( 1893 )

Opinion by

Mr. Justice Thompson,

In this case judgment was entered upon a judgment note alleged to have been executed by appellant. Upon his application a rule to open this judgment was made absolute, and an issue awarded to try the question whether the note upon which judgment was entered was signed by him, or by anyone by his authoritj^. The note was to stand as a declaration, -and the defendant to plead non-assumpsit. Upon the trial of this issue appellee offered in evidence the judgment, to which appellant objected. The objection was overruled and the judgment admitted in evidence. The appellant offered no proof. The court below thereupon directed a verdict for appellee. The judgment was opened upon the ground that the appellant’s signature was a forgery and that he never authorized the same to be made or to be delivered to appellee. The note standing as a declaration and the appellant having filed his plea of non-assumpsit, the issue was framed for the purpose of trying whether such was the fact. The issue being thus made up, the appellee was required to prove her whole case. With the allegation of forgery and the plea of non-assumpsit, she was put upon proof to show that the obligation was duly executed and duly delivered by appellant, or authorized to be so delivered. While it may be that prior to the act of 1887 the practice of the court below was to award an issue, when a judgment was opened and defendant was directed to plead payment which then threw the' burden of proof upon him, yet the act, which provides that in actions of assumpsit the general issue shall be nonassumpsit, does not change the rule that the plaintiff under that plea is required to prove his whole case before the defendant is put upon proof. The judgment was opened generally, and on the trial it was as if it had not been entered. In view of Sossong v. Rosar, 112 Pa. 197, it is unnecessary to consider the question further, for in that case after considering the 'cases upon this question, Mr. Justice Green says : “ These decisions and reasonings upon which thejr are based establish that where a judgment entered upon a warrant of attorney, or even upon a default, is opened generally and without terms, the plaintiff is put to his proof of cause of action precisely as if no judgment had been entered. Consequently any defence which would have been available to the defendant if an action had been brought, instead of a judgment entered upon the instrument in suit, may be set up on the trial, the burden of proof is upon the plaintiff, and he must make out his case, subject to the defendant’s right to defeat him upon any ground that would have sufficed for that purpose if no judgment had been entered.” Judgment reversed and venire facias de novo awarded.