Casper v. Rose Et Ux. ( 1931 )

Opinion by

Gawthrop, J.,

Plaintiff sued defendants, Harry D. Rose and Yetta Rose, to recover from them the balance alleged to be due for work done and materials furnished by him to defendants under an oral contract, averred to have been reduced to writing and executed by Harry D. Rose alone, in his own name, for and in behalf of himself and Yetta Rose, who, it was alleged, authorized him to sign her name to the writing; for her and deliver it to plaintiff. Yetta Rose filed an affidavit of defense raising the question of law that the statement of claim set up no valid cause of action against her. On December 9, 1930, the court below entered an order adjudging that the statement of claim did set forth a good cause of action against Yetta Rose and granted her leave to file an affidavit of defense on the merits. On December 30, 1930, judgment was entered against her for want of an affidavit of de fense. On February 14, 1931, she filed a petition to open the judgment against her and to be permitted to file an affidavit of defense, a copy of which was attached to the petition. The ground on which the court was asked to open the judgment was that the failure to file an affidavit of defense on the merits was due to the fact that she was advised by counsel to take an appeal to the Superior Court from the order adjudging the statement of claim sufficient, but that on account of the expense involved in such an appeal “she has decided to contest the matter on the merits.” She brings this appeal from an order discharging a rule to open the judgment of December 30, 1930.

Neither discussion nor the citation of authorities is required to support our conclusion that the petition to open the judgment avers no valid reason for opening it. Counsel for appellant seems to realize this, for he does not argue that it does. He urges only that the statement of claim did not aver a good cause of action against appellant and that, therefore, it was error to refuse to open the judgment. Manifestly appellant is merely seeking to relitigate a question already determined by the court below against her in the order of December 9, 1930, from which no appeal was taken. This she cannot do on this appeal. Even if the order of December 9, 1930, were wrong (a matter as to which we express no opinion), the error could not be corrected by us on this record. No valid assignment of error raises the question stated and argued. Further discussion would be useless.

Judgment affirmed.