Gottlieb v. Middleberg
Gottlieb v. Middleberg
Opinion of the Court
Opinion by
On August 4, 1902, judgment was confessed and entered against the defendants, Louis Middleberg and Annie Middle-berg, on an ordinary promissory note with warrant of attorney for the confession of judgment. The amount of the note was $150, with interest, and it was due in three months.
On August6, 1902, the defendant, Louis Middleberg, presented a petition and affidavit for himself and his eodefendant, and procured a rule to strike off the judgment. The plaintiff filed an answer to the rule and depositions were taken. On November 11, 1902, the rule was made absolute and the judgment stricken from the record as to Annie Middleberg, and discharged as to Louis Middleberg. On November 13, 1902, Louis Middleberg procured a rule to open the judgment as to him, to which an answer was filed and depositions taken, and after argument the court below, on December 1, 1902, made the rule absolute and opened the judgment and let Louis Middleberg into a defense.
This record, therefore, seeks to raise two questions.
First, did the court err in striking off the judgment as to Annie Middleberg, and second, was the court warranted in opening the judgment as to Louis Middleberg?
At the argument the point was made by counsel for defend
“ A judgment entered wholly without authority is no judgment at all so far as it affects the rights of the defendant: ” Bryn Mawr National Bank, Appellant, v. James, 152 Pa. 364.
It must be conceded that as to the second question, the opening of a judgment as to Louis Middleberg, there is more room for argument. It is vigorously contended, by counsel for the plaintiff, that the allegation that the note was without consideration, the defendant not being indebted to the plaintiff and not having received any money or other thing of value for the note, depends on the uncorroborated testimony of the defend, ant, Louis Middleberg, and therefore the note and testimony of the plaintiff and his several witnesses so strongly rebut and overthrow the testimony of the defendant and Iris witnesses that the court erred in opening the judgment. There can be
We have carefully read and considered all of the testimony in this case and cannot say that the court erred in holding the evidence sufficient to raise such a grave doubt as to the liability of the defendant on the note in question as to require the opening of the judgment and letting the defendant, Louis Middleberg, into a defense.
The assignments of error are all dismissed and the judgments affirmed at the costs of the appellant, with procedendo.
Reference
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- Syllabus
- Judgment — Married women — Striking off judgment. A judgment entered against a married woman on a note which she did not sign, which was not signed for her by anyone authorized so to do and never ratified by her, will be stricken from the record. A judgment entered wholly without authority is no judgment at all so far as it affects the right of the defendant. Judgment— Opening judgment — E vidence. On a rule to open a judgment entered on a note, where the defendant sets up and testifies to a state of facts which if true, constitutes a good defense, and he is corroborated by one or more witnesses or circumstances which are equivalent to at least another witness, it is within the sound discretion of the judge below, acting as a chancellor to decide on which side the scales incline; and if he decides to open the judgment, his discretion in the absence of manifest error will not be reversed by the appellate court.