Lockard v. Keyser , 18 Pa. Super. 172 ( 1901 )

Opinion by

W. D. Porter, J.,

This is an appeal by the plaintiff from the order of the court below opening a judgment entered against the defendant, in default of an appearance and affidavit of defense. It is contended by the appellant that the evidence presented to the court below did not, for two reasons, warrant the opening of the judgment: 1. It was not sufficient to excuse the failure of the defendant to appear and file his affidavit of defense. 2. The allegations of fact relied on by the defendant as a defense upon the merits were denied by the answer of plaintiff and lacked corroboration. The defendant was a man over seventy years of age and lived in a part of Fayette county remote from Uniontown, the county seat. The summons were served on February 4, and was returnable on Monday, February 20, 1899. The defendant understanding the summons to be a notice to appear for the trial on the return day, wrote to his attorney on February 15, stating that he was sick and asking him to have the trial postponed, but that he would come to town that week if he could; to this letter he the next day added a postscript stating that his condition was worse and that he did not expect to be able to go down. The judgment in default was entered February 22, and the appellant’s paper-book states that the petition to open the judgment was sworn to on February 25, and the rule to show cause was granted by the court on March 7,1899. The defendant took the depositions of witnesses in support of this rule, and if their testimony is to be believed the learned court below was guilty of no abuse of discretion when it held that the defendant had satisfactorily accounted for the delay in presenting his defense. The testimony of the physician who attended the defendant during his illness would certainly warrant a finding that the defendant was not able to attend to business of this nature for some days both before and after the return day of the writ. The judgment havi?'g been regularly entered, however, it was incumbent upon th defendant to show that he had a defense upon the merits or it ought not to have been opened.

The plaintiff’s claim was for the value of his services “ as clerk in and about the management and control of defendant’s merchandising business for a period of twenty-one months and eighteen days, to wit: from April 13,1891 to February 1,1893.” The defendant in his petition to open the judgment swore that he had never employed the plaintiff as clerk, and that the merchandising business in question was carried on, during the entire period mentioned, by the plaintiff and defendant as partners, under the firm name of “ William Lockard & Co.,” that as such partners they bought and sold goods, that the partnership business had never been settled, that during Lockard’s management of the business a large indebtedness had been incurred against the firm which the defendant had been obliged to pay, and that upon a settlement of the partnership business Lockard would be indebted to the defendant. The plaintiff filed an answer to this petition, and one of the paragraphs of that answer contains an explicit denial that any partnership ever existed between the parties. If the answer had stopped there the case would have been one of oath against oath. It is well settled that a petition to open a judgment is an invocation of the equitable powers of the court and that it must be disposed of in accordance with equitable principles. “ The judge 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 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 he is in doubt about this question, or as to the credibility of witnesses, a prudent course would suggest the aid of a jury: ” Jenkintown N. Bank’s Appeal, 124 Pa. 337. So long as the court below acts within the limits of the discretion with which it is invested the appellate court will not review the wisdom of the conclusion reached, the judgment may only be reversed because of an abuse of discretion : Kelber v. Pittsburg Nat. Plow Co., 146 Pa. 485; Green v. Boyd, 13 Pa. Superior Ct. 651. When the averments of fact upon which the defendant relies as a defense upon the merits are contradicted by the plaintiff under oath, the defendant must be sustained by corroborative evidence in order to have the judgment opened: Heilner v. Falls Coal Co., 9 Pa. Superior Ct. 78. It must not be understood however that the testimony of disinterested witnesses is always essential, the corroborative evidence may be found in some fact or circumstance admitted by the plaintiff to be true. The plaintiff’s statement in this case does not aver an express contract to pay him wages as a clerk, but relies upon an allegation that he rendered the services and that they were worth the amount.stated. The plaintiff’s answer to the petition of the defendant to open the judgment does not stop with a denial of the material fact that there was a partnership, but goes on and admits that he and the defendant had held themselves out to the world as partners, bought and sold goods in the firm name, and that after the merchandising business had ceased he continued to collect debts due, under the name of “ William Lockard & Co.” When parties hold themselves out to the world as partners it is evidence of the existence of a partnership. The defendant might have called as witnesses those with whom they dealt, and thus established that material fact, but the answer of the appellant rendered it unnecessary: out of the plaintiff’s own mouth came all the corroborative evidence which for the purposes of this case was required of the defendant. There was no abuse of discretion in opening this judgment.

The judgment is affirmed.