Bank v. Fulmor

Opinion,

Me. Chief Justice Paxson :

This was an appeal from the order of the court below staying the execution and awarding an issue. There was also a writ of error to the trial of the issue. There are but two assignments of error, in one of which it is averred that the court erred in suspending the execution and awarding an issue; in the other that the court erred in submitting the case to the jury. The two assignments are filed in both cases.

It is sufficient to say in regard to the appeal that the court did not open the judgment as a preliminary step; it merely stayed the execution and directed an issue to inform the conscience of tbe court whether an order opening the judgment should be made. The court may be so informed by either depositions or an issue. An order which merely stays proceedings while such investigation is being made, is not such an order from which an appeal can be taken under the act of 1876. When the court has made an order, based upon either depositions or the finding of the jury upon the issue, and the effect of such order is to refuse to open it, the ease is ripe for an appeal under the act of 1877.

N o exceptions appear to have been taken to the trial of the issue. The plaintiff relies entirely upon the error in the preliminary action of the court staying the execution and awarding an issue. That order was as follows: “ And now, September 20, 1886, the execution and levy are suspended, and an issue directed to determine whether the judgment in question is satisfied, without prejudice to its lien in the meantime.” The verdict of the jury upon this issue was, “ That said judgment is satisfied, and that there is nothing due thereon.” The court below entered judgment upon the verdict. This is the equivalent, not only of an order opening the judgment, hut also setting it aside. If for the purposes of this case, we treat the original order staying the execution as an order to open the judgment, we are now asked to say that said order was improperly made, and that the subsequent trial of the issue, notwithstanding the verdict in favor of the defendant, goes for nothing. We so held in recent eases of Knarr v. Elgren, 19 W. N. 581, and in Scott’s App., 128 Pa. 155. In both of these cases we held that the judgment was opened upon insufficient evidence, and the verdict of the jury was obtained upon substantially tbe same evidence. Tbe error of the court was supplemented by tbe error of the jury in each case.

The frequency of this class of cases renders it necessary that we should say something as to the proper practice under the act of 1877, P. L. 58, and the measure of proof required to entitle the defendant to have a judgment opened, entered upon a warrant of attorney. The proceeding under that act is an eq uitable one. It provides: “ That in all cases of application, made to any Court of Common Pleas within this commonwealth, to have any judgment which has been entered by virtue of a warrant of attorney, or on judgment note, opened, and defendant or defendants let into a defence, the party or parties aggrieved by the decision of the court thereon may have the same reviewed in the Supreme Court by appeal in like manner and proceedings as equity cases are now appealed. ” In commenting upon this act, it was said by our late brother Thunkey, in Knarr v. Elgren, supra : “ Prior to the enactment of this useful statute, the defendant, who applied to have such judgment opened, was compelled to submit to the decision of the Court of Common Pleas as final when entered against him, unless he resorted to a formal bill and proceeding in equity, which was the only practical remedy for relief from an unjust judgment. In either form of procedure the relief demanded is in equity, and the applicant or complainant must make a case which would justify a chancellor in entering a decree.” After discussing the evidence in that ease, the learned judge concludes his opinion thus: “Were this cause tried in a court of equity in a proceeding commenced by bill, it would be dismissed. That it was commenced in another form does not prevent application of the same principles.”

Prior to the act of 1877, as before observed, the opening of a judgment rested in the discretion of the court below, and no appeal was allowed to this court. It by no means follows, however, that the discretion formerly vested in the Common Pleas in regard to opening judgments, has been taken away by the act of 1877. Upon appeal to this court, we only decide whether the discretion has been rightly exercised. In Earley’s Appeal, 90 Pa. 821, we said: “The exercise of jurisdiction upon rules to open judgments, entered on warrants of attorney, has always been held to be within the sound discretion of the courts. The act of 1877 .....has not changed the law in that respect. It provides only that the decision shall be reviewed by appeal in like manner and ■ proceedings as equity cases are now appealed. It is a mistake to suppose that the court cannot judge of the weight of the evidence, and the credibility of witnesses, but must in every case, where there is a conflict of testimony, send the case to a jury. In equity cases these questions may be determined by the chancellor, and on appeal his decision is reviewed. We are to determine in all such appeals whether the discretion of the court below has been rightly exercised.” In Wernet’s Appeal, 91 Pa. 319, it was held that “ on an application to open a judgment, it is proper for the court to weigh the evidence and decide according to the preponderance thereof, and the Supreme Court will not reverse for the exercise of a sound discretion.” In Kneedler’s Appeal, 92 Pa. 428, it was held that a motion to open a judgment entered on a warrant of attorney is an appeal to the equitable powers of the court, and upon an appeal under the act of 1877 the question is whether the court rightly exercised its discretion upon the evidence. To the same point is Wise’s Appeal, 99 Pa. 193.

Other cases might be cited; those I have referred to are sufficient. They show conclusively that an application to open a judgment entered upon a warrant of attorney or judgment note, is an equitable proceeding, addressed to the discretion of the court, and is to be disposed of in accordance with the principles of equity. The jrrdge to whom the application is made acts as a chancellor, and upon appeal this court will only see that his discretion has been properly exercised. It is difficult to lay down the precise measure of proof which should move a chancellor to open a judgment. That he may not act unless there is more than an oath against oath, is a familiar rule in chancery practice. When there is more than this, and it comes to a question of the weight of the evidence, it is for him to decide to which side the scales incline. If be is in doubt upon this question, or as to the credibility of witnesses, a prudent course would suggest the aid of a jury. Subject to the foregoing, it is proper to say, that if the testimony taken on the rule would be sufficient to justify the submission o£ the question to a jury, the court may, in its discretion, make an order to open; but if, on the testimony so taken, the court would set aside a verdict for the defendant, the court should refuse to open. This rule provides a reasonable margin for the exercise of the discretion of the court below, which this court will hesitate to interfere with.

Returning to the case in hand, we have a petition praying that the execution be set aside and the judgment opened; depositions taken for and against the rule, and an order of court staying the execution, and directing an issue to further inform the conscience of the court upon the facts, followed by the verdict of the jury upon the issue, that the judgment in question is satisfied. The entry of judgment upon this verdict is the first step in the cause to which either appeal or writ of error would lie. It follows that the first assignment of error is without support. It remains only to consider whether it was error to submit the case to the jury: see .second assignment. If it depended upon the precise terms of the assignment there could be but one answer. The court was but seeking the aid of the jury to determine whether the judgment should be opened. B ut as the assignment was evidently intended to reach the final action of the court in setting aside the judgment, we shall so treat it.

This is not the case of the reformation of an instrument on the ground of fraud, accident, or mistake; hence many of the authorities cited on behalf of the appellant do not apply. There was no attack upon the integrity of the judgment. It was merely a question of payment; or, to state it more accurately, whether the plaintiff bank, for the convenience and advantage of other parties as well as its own, had agreed to satisfy the judgment in question and accej)t another judgment for the same amount in lieu thereof. In such case a chancellor might not require the same measure of proof as in a proceeding to reform the instrument. If, therefore, there wras evidence enough to submit to the jury, and to sustain their verdict, it was not error to submit it, and to enter judgment on said verdict. Without entering upon an extended discussion of the testimony, we are satisfied there was enough to justify the learned judge in sending the case to the jury. It is true the defendant was contradicted to some extent, but there were some circumstances which certainly corroborated him; and there were other circumstances which were claimed to corroborate him, the effect of which was fairly left to the jury and they have found that they did corroborate him. Of the former class is the undisputed fact that the bank did take a new judgment; that they entered it up and that they did not satisfy the old judgment. It is also undisputed that other creditors released their liens, and it is claimed that they did so under the arrangement testified to by the defendant. The ease involved a fair question of fact for a jury, nor was it free from doubt. The learned judge, acting as a chancellor, would probably have accepted the verdict had it gone either way.

The appeal is quashed, and the judgment is affirmed upon the writ of error.