Wynn v. Duve

Opinion by

Head, J.,

It seems useless to repeat but it is wise to remember that an application to open a judgment regularly and formally entered in a court of law is an appeal to the equitable powers of the court where the judge sits as a chancellor. He is the trier of the questions of fact that may be involved in the controversy and he is invested with a wide discretion in the consideration of conflicting evidence and the determination of the correct conclusions to be reached therefrom. Unless it appears from the record that there has been an abuse of that discretion, there is no sound reason for interference with the conclusions he reaches.

The opinion filed by the learned judge below and which will be printed with the record of this appeal clearly shows that he gave due consideration to all of the conflicting evidence in the case. He accepted as truthful the testimony of a member of his own bar, personally well known to him as a man of intelligence and integrity. His testimony is clear, directly on the point, and, like the learned court below, we And it convincing. In according credibility to his testimony, we cannot perceive how it can he successfully urged the learned court below abused the discretion reposed in him. The transaction was neither immoral nor illegal. It is true the appellant, a married woman, was not competent to become a surety for her son or for any other person because in that respect the law had not relieved her of the disabilities imposed by her coverture. It is not denied she executed and delivered the obligation upon which judgment was regularly entered. It is not denied that a full consideration therefor passed from the appellee. It cannot be urged that the title to the personal property was not lawfully vested in her and that it was by her will and her act turned over to her son. The judgment remained on the record unquestioned for several years; that a payment of five hundred dollars on account of it had been made by the appellant and it was only when the appellee sought to collect, by legal process, what was due and unpaid, her petition to open the judgment was filed.

All of these matters are clearly yet briefly set forth in the opinion of the learned judge below and they convince us that, in discharging the rule to open the judgment, he cannot be convicted of an abuse of discretion. The assignments of error must therefore be overruled.

Appeal dismissed at the costs of the appellant.