Floto v. Christner , 1909 Pa. Super. LEXIS 631 ( 1909 )

Opinion by

Beaver, J.,

The appellant seeks to have a judgment against him opened, on the ground that on the note upon which it is entered, in which he appears as the principal, or at least a joint maker, he is really the bail of the party who signs it with him, either as apparent joint obligor or surety. He, therefore, assumes the attitude of contradicting the note as it was made, and changing the relation of the parties thereto. To do this, his petition should have been supported by evidence that was clear, precise and indubitable. It was not so to the court below and is not so to us.

The answer of the appellee was the distinct and emphatic denial of every allegation set forth in the petition to open, and the testimony taken on behalf of the appellee is a complete contradiction of all the facts, as alleged and testified to by the appellant.

There was nothing, therefore, either in the petition or testimony of the appellant in the court below, which would move a chancellor to reform the instrument upon which the judgment was entered against him. On the contrary, his own witnesses seem to sustain the character of the note and the real relation of the parties thereto, as claimed by the appellee, rather than the appellant. Under these circumstances, therefore, without going into the rather remarkable experiences testified to by the other maker of the note beside the appellant, we cannot see how the court below, under a proper consideration of the numerous authorities which govern such a transaction, could have made the rule to show cause why the judgment should not be opened absolute. On the contrary, for the reasons stated in the opinion of the court below, there was every reason why the rule should have been discharged, as it was. We are all of the opinion that the rule to show cause was properly discharged.

Decree affirmed and appeal dismissed at the costs of the appellant.