Citizens' Trust & Surety Co. v. Goodchild

45 A. 662, 195 Pa. 80, 1900 Pa. LEXIS 586

• Court: Supreme Court of Pennsylvania
• Decided: February 26, 1900
• Docket: Appeal, No. 271
• Status: Published

Opinion

Per Curiam,

We are not convinced that the court below erred in refusing to open the judgment. A year or more previous to the application to open it a sci. fa. was issued thereon to revive and continue the lien, which proceeding was met by the defendant with an affidavit of defense embracing substantially the same grounds of attack upon the judgment as were specified in the application. The affidavit was adjudged insufficient, and after that the defendant made no effort to set aside or open the judgment until April, 1899, and the effort then made was unavailing and justly so. The testimony of the defendant included a denial on his part of any knowledge of the agreement of January 17, 1893, when he signed the bond, and contained a statement that he first learned of it early in October of that year. In another part of his testimony he said that lie did not know the facts until the fall of 1894, and later on he admitted that, in the affidavit of defense he filed to the suit of the German-American Title & Trust Company against the Citizens’ Trust & Surety Company, he did not allude to it. Assuming that he first learned of the agreement of January 17,1893, on the 2d of October of that year, he made no application to open the judgment until April, 1899, and in the mean time he employed counsel to defend a suit in which, according to his own claim, he had no interest whatever. Iiis conduct during that period was so inconsistent with the defense he attempted to set up in April, 1899, that it was in itself sufficient to defeat his claim. This conduct, together with the testimony in the case, fully justified the refusal of the court below to open the judgment.

Judgment affirmed.