Franklin Trust Co. v. Franklin Valveless Engine Co.

163 A. 516, 309 Pa. 186, 1932 Pa. LEXIS 681

• Court: Supreme Court of Pennsylvania
• Decided: September 29, 1932
• Docket: Appeal, 156
• Status: Published

Opinion

Per Curiam,

Appellant complains that the court below, in entering-judgment against it for want of a sufficient affidavit of defense on a writ of scire facias sur mortgage, overruled its plea of non est factum by a mere examination of the writ and answer without submitting disputed facts to a jury. Despite appellant’s assertion to the contrary, there can be no doubt but that the mortgage in question was properly before the lower court. This is apparent from the first paragraph of the praecipe for writ of scire facias which fully states the record of the mortgage as required by the rules of court of Venango County. Likewise, the docket entries, as set forth in the court’s opinion, show that plaintiff filed a copy of the mortgage which was annexed to and made part of its answer to defendant’s motion to quash the writ of scire facias.

However, appellant has not printed the mortgage in the record before us and in such case the rule applies that Avhere appellant fails to bring up an item of evidence used in the court below, which is susceptible of reproduction, “the reviewing tribunal must assume that, if the omitted evidence were in the record, it would support the judgment of the court below”: Hurley v. Rieck Co., 256 Pa. 97, 101; see also Ligo v. Dodson, 299 Pa. 450.

Appeal dismissed at appellant’s cost.