Chubb v. Kelly

Superior Court of Pennsylvania

Chubb v. Kelly

80 Pa. Super. 487, 1923 Pa. Super. LEXIS 191

CourtSuperior Court of Pennsylvania

DecidedMarch 2, 1923

DocketAppeals, Nos. 152, 161, 264, 265, 266, 267

StatusPublished

Cited by4 cases

This text of 80 Pa. Super. 487 (Chubb v. Kelly) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Chubb v. Kelly, 80 Pa. Super. 487, 1923 Pa. Super. LEXIS 191 (Pa. Ct. App. 1923).

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Opinion

Opinion by

Gawthrop, J.,

These appeals are from orders of the court below discharging rules to open judgments entered by yirtue of warrants of attorney contained in six certain judgment notes. The ground upon which the court below was asked to open the judgments was that at the time the notes were given the plaintiff made an oral agreement that no judgment should be entered upon the notes until default in payment on their respective due dates, and that the plaintiff entered the judgments in violation of that agreement. Prior to the taking of the rule to open the judgments, the defendant took a rule to strike them off on the same ground. The court below dismissed the rule upon the authority of O’Hara v. Baum, 82 Pa. 416, and the line of cases following it, in which the true and settled rule is stated, that “a motion to set aside or strike off a judgment must be on the ground of irregularity appearing on the face of the record; a motion to open it is an appeal to the equitable power of the court, to let the defendant' into a defense.” A rule to strike off is not the proper remedy where the irregularity of the judgment is alleged because of matters dehors the record: Germantown Brewing Co. v. Booth, 162 Pa. 100. In the absence of a restriction or condition to the contrary judgment may be entered upon a warrant of attorney in a judgment note before the debt becomes due: Integrity Title Insurance, Trust & Safe Deposit Co. v. Rau et al., 153 Pa. 488. Our inquiry is confined to the question whether the court below abused its discretion in refusing t'o open the judgments: Rasp v. Rasp, 79 Pa. Superior Ct. 29. The allegations of the defendant’s petition were supported only by his own oath without corroborative circumstances or circumstances from which inferences could be drawn corroborative of him. He was contradicted by the plaintiff and, with the notes in the scale against him, his case lacked substantial merit, and [489]*489it would have been an abuse of discretion for tbe court below to bave opened tbe judgments.

All of the assignments of error are overruled, and tbe orders are affirmed.

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Opinion by

Gawthrop, J.,

These appeals are from orders of the court below discharging rules to open judgments entered by yirtue of warrants of attorney contained in six certain judgment notes. The ground upon which the court below was asked to open the judgments was that at the time the notes were given the plaintiff made an oral agreement that no judgment should be entered upon the notes until default in payment on their respective due dates, and that the plaintiff entered the judgments in violation of that agreement. Prior to the taking of the rule to open the judgments, the defendant took a rule to strike them off on the same ground. The court below dismissed the rule upon the authority of O’Hara v. Baum, 82 Pa. 416, and the line of cases following it, in which the true and settled rule is stated, that “a motion to set aside or strike off a judgment must be on the ground of irregularity appearing on the face of the record; a motion to open it is an appeal to the equitable power of the court, to let the defendant' into a defense.” A rule to strike off is not the proper remedy where the irregularity of the judgment is alleged because of matters dehors the record: Germantown Brewing Co. v. Booth, 162 Pa. 100. In the absence of a restriction or condition to the contrary judgment may be entered upon a warrant of attorney in a judgment note before the debt becomes due: Integrity Title Insurance, Trust & Safe Deposit Co. v. Rau et al., 153 Pa. 488. Our inquiry is confined to the question whether the court below abused its discretion in refusing t'o open the judgments: Rasp v. Rasp, 79 Pa. Superior Ct. 29. The allegations of the defendant’s petition were supported only by his own oath without corroborative circumstances or circumstances from which inferences could be drawn corroborative of him. He was contradicted by the plaintiff and, with the notes in the scale against him, his case lacked substantial merit, and [489]*489it would have been an abuse of discretion for tbe court below to bave opened tbe judgments.

All of the assignments of error are overruled, and tbe orders are affirmed.

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80 Pa. Super. 487, 1923 Pa. Super. LEXIS 191, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chubb-v-kelly-pasuperct-1923.

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