Sweigart v. Conrad , 12 Pa. Super. 108 ( 1899 )

Opinion by

William W. Pouter, J.,

.The note in this case was given May 30,1882, by John Conrad and Catharine Conrad. On April 1, 1888, John Conrad died. On December 6, 1898, the judgment note was entered up by leave of court on petition, — the petition being silent as to the fact of Catharine Conrad being married at the time of the execution of the note. It will thus be seen that the note was given before the Act of June 3,1887, P. L. 332, and became a judgment against the present defendant after the date of that act.

It is contended that the note upon which the judgment was entered was that of a married woman, and that both the note and the judgment were therefore void. The record on its face does not show the defendant to be a married ivoman. In the case of a rule to strike off a judgment, the court cannot look beyond the record in reaching its decision. Before the act of 1887, and for a time thereafter, the practice was -to strike off a .confessed judgment against a married woman when the fact of . coverture was disclosed by the depositions. This course was followed by the Supreme Court as late as the case of Investment Co. v. Roop, 132 Pa. 496. The law is not so now: Stahr v. Brewer, 186 Pa. 623; Adams v. Grey, 154 Pa. 258.

The note in this case having been given before the act of 1887, it and the judgment entered upon it were prima facie void if the defendant was a married woman. To ascertain .this fact, however, the court was forced to consider the depositions taken under the rule and thus to travel beyond that which, in strictness, was the record: France v. Ruddiman, 126 Pa. 257. If an examination of the testimony was warranted the • court might have gone further and seen that there was some .evidence of a promise on the part of the defendant after she became discovert to pay the note; that she made some payments on account of it, and permitted credits to be indorsed .upon it. If the debt was originally that of the defendant’s hus•bahd which she agreed to pay, or her own (though uninforcea,ble), in either case the moral obligation to pay would be a consideration to support a ratification or re-creation of the debt after the coverture ceased: Geiselbrecht v. Geiselbrecht, 8 Pa. Superior Ct. 183, and cases there cited.

These are matters which involve an examination of the testi'ínony taken which may not be considered on a rule to strike • off. It seems to us that they are no more to be excluded than .the testimony relating to coverture. The latter voids the debt, (but the former may be sufficient to support it. To what extent ,the testimony presented by the parties might influence the t court on a rule to open we do not undertake to say.

The trend of the decisions is so clearly in the direction of iholding the courts strictly to a scrutiny of the record alone on motions to strike off that we are led to the conclusion that the ,. court erred in this case in making the rule absolute on facts "Which could only have been ascertained by him from the testimony.

The order is reversed without prejudice to the right of the (defendant to move to open the judgment.