Olekszyk v. Walelko , 92 Pa. Super. 565 ( 1927 )

Argued October 12, 1927. This matter came before the lower court upon a petition to open judgment and let defendants into defense. An answer was filed, depositions were taken in support of defendant's petition and counter-depositions by the plaintiff, after argument, the court discharged the rule. No opinion was filed. There is no question that the judgment was confessed for the sum of money then due and strictly speaking, no reason was offered why the judgment should be opened.

The defendants, however, have deposed that when the money was borrowed, there was an agreement that plaintiff should come and live with the defendants and whatever he owed for board should be applied in part liquidation of the judgment from time to time. This arrangement was subsequently recognized by plaintiff and when demand was made for the payment of board, the defendants were directed to apply the amount due for board on the debt they owed to plaintiff. This testimony of the defendants was corroborated by other witnesses and although denied by the plaintiff and one witness, raised a question as to payment and as to the amount still due upon the judgment which in the absence of any good reason to the contrary entitled the defendants to have the matter decided by a jury.

As we have observed before, the lower court filed no opinion and we are, therefore, unable to ascertain what reason induced it to refuse the petition. As stated before, the judgment should not be opened, but an issue should be framed to determine how much is due on it. The proper practice is indicated in the case of Anderson v. Best, 176 Pa. 498, where there were no facts authorizing the opening of the judgment, but the question whether payments on account had been made and whether the whole sum was still due on the bond was submitted to a jury. We followed that practice in Brader v. Alinikoff, 85 Pa. Super. 285.

The order of the lower court discharging the rule is reversed, and the court is directed to award an issue in order that the matters in dispute may be tried by a jury.