Mullet v. Hensel , 7 Pa. Super. 524 ( 1898 )

Opinion by

Rice, P. J.,

The defendant was not a competent witness as to any matters occurring in the lifetime of the decedent, but the plaintiff was. His interest was not adverse to the right of the deceased party to the contract: Smith v. Hay, 152 Pa. 377, 383; Brose’s Estate, 155 Pa. 619. Hence, as to the main contention, the application to open the judgment was supported by the testimony of only one competent witness, Abraham Stouffer. This was inconsistent with the allegation of the petition as to the motive of the decedent in making a gift of the note, or the money represented by it, to his son, and utterly failed to support the allegation that the note was drawn, as it now stands, through mistake or ignorance.

An application to open a judgment is addressed to the sound discretion of the court, and on appeal from a refusal to open, the question to be decided is, whether that discretion has been properly exercised. Where the defense is that there was a contemporaneous parol agreement varying the terms of the writing upon which judgment was entered, it is incumbent on the defendant to sustain his allegation by testimony of the kind and quantity which would be sufficient to move a chancellor to reform the instrument. The plaintiff having filed a sworn answer denying the allegations of the petition, the court committed no error in applying these familiar principles to the case, and refusing to open the judgment generally upon the uncorroborated testimony of a single witness. But, as the plaintiff conceded in his answer that the defendant had paid 118.00, being interest for - one year to July 28, 1895, which was erroneously included in the amount for which judgment was entered, he was entitled to relief to that extent. Doubtless this admitted error would have been corrected in the court below if attention had been directed to it. It was evidently overlooked in the consideration of the main question.

The order discharging the rule to show cause why the judgment should not be opened is modified by directing that the plaintiff forthwith credit upon the judgment the sum of $18.00, being the interest to July 28, 1895, admitted in the plaintiff’s answer to have been paid, and as thus modified the order is affirmed.