Fisher v. Holbrook , 7 Pa. Super. 647 ( 1898 )

Opinion by

Orlady, J.,

The petition to open the judgment in this case avers sufficient material facts to justify the court in submitting the defense to a jury.

The answer filed by the plaintiff and the testimony taken develop a state of facts which is difficult of solution. The transaction in which the note was given was of so doubtful a character, and the evidence of the plaintiff taken under the rule to open the judgment is so at variance with the contention in his answer, that to our minds the weight of the evidence as presented is with the defendant.

It is hard to understand why the plaintiff should first swear that he received the property “ subject to the right of redemption within thirty days by said defendants,” and subsequently testify that the purchase was an absolute one.

He changed his defense to the rale to open the judgment at his hazard, and the doubt as to what was in fact the agreement between the parties is raised by his own evidence. The dispute is so distinct that one party or the other is designedly misstating the facts. If the defendant’s statement is true and this judgment is enforced against her, she necessarily suffers a great injury, and if the plaintiff’s version is correct as given in his final examination, his proof of the integrity of his judgment should have been more consistent when it was first assailed.

The character and real value of the property, the peculiar relation of the defendant to it at the time she signed the note, and the substitution of Fisher for Clark in carrying out the original arrangement, all go to strengthen her claim to equitable interference.

The decision of the question does not depend on the oath of the defendant alone, but to this are added circumstances from which inferences may be fairly drawn corroborative of her petition, which are sufficient to overcome the writing. There are cases where more than, this cannot be furnished, and we feel that a jury should pass on the facts of this case to the end that substantial justice may be done: Stockwell v. Webster, 160 Pa. 473. It is difficult to lay down the precise measure of proof which should move a chancellor to open a judgment. That he may not act unless there is more than oath against oath is a familiar rule in chancery practice; where there is more than this, and when it comes do a question of the weight of the evidence it is for him to decide to which side the scales incline. If he is in doubt upon this question, or as to the credibility of witnesses, a prudent course would suggest the aid of a juiy: Jenkintown N. Bank’s Appeal, 124 Pa. 337; Crawford v. Rath, 4 Pa. Superior Ct. 612.

An examination of this record moves us to so refer this controversy.

The decree of the court below is reversed and it is ordered that the judgment be opened and defendant be permitted to defend, etc.