Heilner v. Falls Coal Co. ( 1898 )

Opinion by

Smith, J.,

Judgment was entered in this case September 30,1895, on a judgment note against The Falls Coal Company and Howard Strang. On May 17, 1898, Strang petitioned the court for a rule to open the judgment and let him into a defense, alleging that the judgment was given for a debt of the coal company of which he was secretary and treasurer; that when he signed the note it was understood that he assumed no personal liability, and merely signed in his official capacity, as secretary and treasurer, in order to make the note good against the company; that the plaintiff having threatened suit against the coal company, he agreed, as its secretary, in order to save expense and trouble, to confess judgment against the coal company for its indebtedness to the plaintiff, but that in doing so he neglected to place after his signature, his title as secretary and treasurer of the company.

The petition is inartistically drawn and fails to present the material averments, with fullness and accuracy. The defense aimed at can only be found through the reasonable inference to be drawn from the whole instrument. However, the court below evidently deemed it sufficient, preliminarily, to support the rule asked for, and the same was granted. Depositions were taken when both parties were represented and offered testimony touching the merits of the question raised under the rule. The court made the rule to open the judgment as to Strang absolute and from this order the plaintiff appealed.

The appellant’s contention that in order to have the judgment opened there must be more than oath against oath; that where the defendant’s material allegations are contradicted by the testimony of the plaintiff, some material circumstances corroborative of the defendant’s testimony must be shown, in order to have the judgment opened, is undoubtedly correct, and if there was nothing else in this case it would have been the duty of the court to discharge the rule. .

But a more important point has been raised by the appellees. Under the rules of the court below, unless the averments of the petition are denied by answer under oath, they shall be taken as admitted for the purposes of the rule. The rule is as follows : “ All averments in petitions or affidavits on which rules or citations have been granted, shall be taken as admitted for the purposes of the rule or citation unless the opposite party shall deny the same in answer under oath to be filed in the cause, or aver that he has no knowledge, information or belief on the subject and requires proof of the same.” The existence of this rule is not denied and there is no allegation that the plaintiff filed an answer to the petition. The record is silent on that question. Apart from the depositions, therefore, the defendant had a right to have the averments of the petition “taken as admitted for the purposes of the rule.” In the absence of an answer or an adequate reason for default in this respect, the court had a right to make the rule absolute: Russell’s Appeal, 98 Pa. 384. The sufficiency of the petition and depositions was within the discretion of the court below, and we cannot say that this discretion was improperly exercised.

The order of the court below is affirmed.