Steltzer ex rel. Pinks v. Steltzer , 10 Pa. Super. 310 ( 1899 )

Opinion by

William W. Porter, J.,

No error was committed by the court below in dismissing the rule for judgment for want of sufficient affidavit of defense in this case. The averment of the defendant is that since “the date of the plaintiff’s alleged judgment your affiant and W. A. Steltzer, the legal plaintiff, had various dealings and during the continuance of the same had several settlements in full of all accounts, the last of which was February 4,1895, when there was found due your affiant the sum of $4.95 which was paid by the same W. A. Steltzer to your affiant at the date aforesaid.” In respect to the use plaintiff, who claims a part interest in the judgment, the defendant sets forth in his affidavit that “ he and the use plaintiff James Pinks had various dealings after the date of the alleged assignment up and until the 3d day of February, 1883, at which time there was a full settlement of the accounts and dealings between the said parties.”

We are of opinion that these allegations in view of the long period during which the plaintiff made no attempt to collect the judgment and of the solvency of defendant, furnish sufficient ground for the action of the court below in refusing to enter judgment. “ A legal presumption of payment does not indeed arise short of twenty years yet it has been often held that a less period with persuasive circumstances tending to support it may be submitted to the jury as a ground for a.presumption of fact: ” Moore v. Smith, 81 Pa. 182.

The allegations of full settlements between the parties were of facts sufficiently strong in support of the presumption of payment, to take the case to the jury where the sci. fa. to' revive was issued nineteen years and nine months from the date of the entry of the original judgment before the justice of the peace and seventeen years and three months from the last payment on account credited on his docket.

As this case must be tried we refrain from discussion of the merits. The appeal is dismissed without prejudice, etc., at the cost of the plaintiff.