Arbuckles & Co. v. Cloughley , 64 Pa. Super. 609 ( 1916 )

Opinion by

Orlady, P. J.;

On July 31,1909, a judgment was entered in the Court of Common Pleas of Beaver ^County, in favor of Arbuckles and Company, against Isabella Marshall and Alexander Marshall, founded on a warrant of attorney in a note dated July 9, 1909, signed by Alexander Marshall, find the name of Mrs. Isabella Marshall and her mark X. The undisputed testimony in the case shows that the name of Isabella Marshall was written by Eliza Sproul, her daughter, who at the request of Alexander Marshall, signed the name Mrs. Isabella Marshall, and her own name as a witness, but refused on his request to insert the “X” and words “her mark”; whereupon Alexander Marshall added the words and character between her Christian and sur name, to give it the appearance of genuineness. Mrs. Marshall was not present when the note was executed; did not know of or authorize the use of her name, and was not in any manner indebted to the plaintiffs. Her signature stands unchallenged, as being an undoubted forgery.

Soon after the entry of judgment, an execution was issued and a levy made on a stock of groceries in a store conducted by Alexander Marshall, from which $138.73 was realized, and credited on the judgment. No levy was made on the property of Mrs. Marshall, nor did she know of the issuance of the execution.

On July 18, 1914-, a scire facias was issued to revive the judgment and returned by the sheriff as having been served on both named defendants on July 27th, and on September 27th, a judgment was entered against each for want of an appearance. In March, 1915, Mrs. Marshall received notice from the plaintiff’s counsel making a demand for payment of the balance due, and this notice she avers was the first knowledge she had of the fraudulent use of her name. She promptly consulted her attorney, when a petition was presented, reciting the above facts and praying for a rule to open the judgment. The answer filed, sets forth the principal argument urged on this appeal, viz: “3, that on July 18, 1914, plaintiff caused a scire facias, 271 September Term, 1914, to issue sur judgment, 242 September Term, 1909, to revive said judgment; that said scire facias was duly served upon Isabella Marshall and Alexander Marshall, and the said Isabella Marshall did not enter any appearance, nor make any defense to said judgment,” and that judgment was duly entered in default of an appearance.

Considerable testimony was taken on the rule to open the judgment, from which the above facts appear to be clearly established.. After a hearing, the court discharged the rule, which action is the sole error assigned on this appeal. Relief was refused by the court below owing to the laches of Mrs. Marshall in her delay in presenting her defense. This reason concedes that if the application to open the judgment had been made promptly the rule would have been made absolute.

It has been frequently held, that when a fraud is clearly proved the court will look with more than usual indulgence on facts which reasonably excuse delay in asserting a right. No arbitrary rule exists for determining when a demand becomes stale, or what delay will be excused, and the question of laches is to be decided upon the particular circumstances of each case. The appellee urges that there is a delay amounting to laches from July 27, 1914, when the scire facias was served on her until April 3, 1915, when the petition to open was filed, and possibly for a longer period, but the testimony in regard to that is quite uncertain. On the other hand, her positive testimony is, that she had no knowledge of any such claim against her until March, 1915, when she received a letter from plaintiff’s counsel, and, that within a few days thereafter she consulted her attorney, who prepared her petition.

Had the plaintiffs been ordinarily diligent, in ascertaining the genuineness of a signature which was admittedly made by one other than the maker of the note, and had not patiently held it from 1909 to 1914, all the facts could have been more easily ascertained. After such indifference on their part, her alleged laches, with her financial situation unchanged, is not sufficient reason to bar her the defense of; forgery of her name.

It is conceded that laches cannot be imputed to one who has been justifiably innocent of the controlling facts, and this rule receives its most frequent and familiar application in suits for relief on the ground of fraud, where time begins to run not from the perpetration, but from the discovery of the fraud, if the discovery is made with reasonable diligence.

The fact that she could not read ¡or write, was ignorant and unlearned, of itself, is not a sufficient reason for opening the judgment, but that fact, in deciding whether she knew of the service of the scire facias upon her, may be considered and whether she should have equitable relief from a palpable forgery of her name, in a case where the slightest inquiry by the plaintiff at any time during five years, would have disclosed the fact that she was not liable, either as an original maker of the note, or by any subsequent ratification.

In Jacobosky v. Zborowjan, 46 Pa. Superior Ct. 626, we held, There is no inflexible rule which compels the court to open a judgment entered upon a judgment note where the defendant swears that his signature is a forgery. Even in such a case the judge should exercise a sound discretion, after careful consideration of the character and effect of the testimony: Roenig’s App., 1 Sadl. 284; Essick’s App., 1 Mona. 588; Augustine v. Wolf, 215 Pa. 588; Shannon v. Castner, 21 Pa. Superior Ct. 294; Ilyus v. Buch, 34 Pa. Superior Ct. 43.

If her testimony is to be believed, and thei*e is no reason suggested for doubting it, she presented her defense as soon as she knew of the plaintiff’s demand against her. A majority of the judges who heard this, appeal, are of the opinion that the rule to show cause why the judg-' ment should not be opened, should have been made absolute, and the judgment should be reversed with a procedendo.

It is so ordered.