Steiner v. Scholl , 163 Pa. 465 ( 1894 )

Opinion by

Mb. Chief Justice Stebrett,

While the prayer of the petitioner was that the judgment in question be stricken from» the record, the proceeding appears to have been treated throughout as a rule to show cause why the judgment should not be opened and defendant let-into a defence, etc.

The result of our examination of the record, including the petition, answer and depositions, is that the evidence tends to establish such facts and circumstances as would have justified the learned judge of the common pleas in opening the judgment and sending the case to a jury. As disclosed by the testimony, the business relations of the plaintiff with the defendant, an illiterate old woman, of nearly three score and ten years, were not what they should have been. It tends among other things to show that in 1892, the year the judgment note in .question purports to have been given, she held his note for $500, which he claims to have paid in June of that year; but, it also appears that in October of the same year he wrote for defendant, in relation to said note, a letter to her daughter, Mrs. Landis, in these words : “ Dear Daughter : You will please send me that note of I. Erb Steiner down he wants to pay some money on it and I must have it. Send it in a letter and seal the letter well-and address it to me. Send it at once and don’t fail. Magdalena Scholl.”

At best, plaintiff’s explanations of this and other transactions with defendant appear to be unsatisfactory. If he actually paid the $500 note, it is due to him as well as .the defendant that he should have an opportunity of-proving the fact. If he is unable to do so, defendant should at least have credit for the ámount.

Without referring to other circumstances which may assume importance on the trial, we think the decree discharging the rule should be reversed.

Decree reversed and ordered that the judgment be opened and defendant be permitted to defend, etc.