Russell's Appeal

Mr. Justice Sterrett

delivered the opinion of the court, March 22d 1880.

In such cases as this the rules of the court below require the allegations of fact in the petition, the denial thereof, or statement of other facts, by way of defence, contained in the answer, to be verified by the affidavits of the respective parties. They also provide that the petitioner may, within ten days, file a replication to the answer, verified in like manner; and, on hearing of “ the rule to show cause,” the facts, as stated in the petition or answer, and not denied in the manner aforesaid, shall be taken pro confesso. This very properly assimilates the proceeding to the practice in equity, to which, in fact, it belongs. Under our blended system of law and equity, a petition to open a judgment and let the defendant into a defence takes the place of a bill. In the absence of a replication to the answer, the facts therein stated by way of defence to the petitioner’s application were to be taken as admitted.

The answer to the petition was filed March 19th 1879, and without replication thereto, as provided by the rule of court, or any testimony on either side, the case was set down for hearing on the petition and answer, and after being continued from June until September, the court, in the exercise of that sound discretion with whieh it-is invested in such cases, refused to open the judgment. The single question for consideration is whether the discretion was rightly exercised.

The note on which the judgment was entered is attested by two subscribing witnesses; and the petitioner does not deny that she signed it as it appears of record. After stating her physical condition, &c., and that the appellee had for many years attended to the collection of her rents, she says that on or about October 16th 1878, he called on her and said, “she ought to compensate him for his many services,” and give him a note. To which she replied, “ that she wished to do what was right in the matter, and trusted to him.” Whereupon he prepared a note for her to sign, “which she did sign with her mark.” She further says that she retained no recollection of the contents of the paper, beyond the fact that she had signed something for him, but ascertained after-wards that it was the note on which judgment had been entered. This is virtually an admission that the note was given in consideration of the services referred to. She then speaks of her indebtedness to him; and says, in substance, that while she may have been indebted for money advanced in and about the repair of her property and for commissions on rents collected, the only positive knowledge she had of any debt due him was a note of §180, dated April 1st 1876, for money loaned, and a further sum, not exceeding in the aggregate $50, advanced at various times in small amounts. The affidavit, as a whole, amounts to little, if anything, more than a denial that there was full consideration for the note, and even that is somewhat doubtfully expressed.

On the other hand, the appellee in his answer alleges that he acted as her agent and business manager for a period of nearly twenty years, for which he had never been compensated; that, prior to giving the note in question, she expressed a desire to pay him, and requested him to procure a judgment so that he might be secured in the real estate; that, in pursuance thereof, he procured the note to be drawn in the sum which she designated “ as the proper amount of compensationthat the note so prepared was executed in the presence of the subscribing witnesses, Dr. Swartzlander, her physician, and Mr. Oarwithen, one of her neighbors ; that the consideration of the note was fully explained in their presence, and after it was read over to her by Dr. Swartzlander she stated that she understood it, and desired to sign it; and did then and there sign it, voluntarily and with a full understanding of its contents. The answer further avers that it was always expressly understood and agreed that the services rendered were to be compensated; that nothing was ever received on account, and that she was justly indebted in the amount of the note.

The answer is full and explicit as to the execution of the note and the consideration for which it was given. In the absence of a replication or traverse of the answer, or any testimony tending to rebut the bona fides of the transaction as therein detailed, the court was clearly right in discharging the rule. Under the circumstances, the learned judge could not have done otherwise without utterly ignoring his own rules of court, and violating well-established principles of practice. Nearly six months elapsed between the filing of the answer and the hearing. Ample time was thus afforded in which to file a replication and take the testimony of the subscribing witnesses and others. The fact that it was not done justifies the inference that their testimony, if it had been taken, would have strengthened the njaterial allegations of the answer. It is not to be presumed that learned counsel, fully awake to the interests of his client, would fail to file a replication to the answer, and thus prevent the allegations of fact therein contained from being taken pro confesso under the rule, if he had thought those allegations could have been successfully controverted, or that he would submit the case without calling the subscribing witnesses to the note unless he was satisfied that their testimony would not strenghten his client’s case.

It is very true that, in cases where fiduciary relations are shown to have existed, courts will exercise great liberality in granting equitable relief, but this does not mean that established rules of evidence and practice are to be utterly disregarded, and judgments opened upon a mere suggestion of bad faith or want of consideration.

We think the discretion of the court below was rightly exercised in discharging the rule to show cause.

The order of court discharging the rule, &c., is affirmed, and appeal dismissed at the costs of the appellant.

Mr. Justice Trunkey filed a dissenting opinion, in which Chief Justice Sharswood concurred.