Trenton Trust Co. v. Husak

Superior Court of Pennsylvania

Trenton Trust Co. v. Husak

198 A.2d 406, 202 Pa. Super. 478, 1964 Pa. Super. LEXIS 983

CourtSuperior Court of Pennsylvania

DecidedMarch 17, 1964

DocketAppeal, 413

StatusPublished

This text of 198 A.2d 406 (Trenton Trust Co. v. Husak) 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

Trenton Trust Co. v. Husak, 198 A.2d 406, 202 Pa. Super. 478, 1964 Pa. Super. LEXIS 983 (Pa. Ct. App. 1964).

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Opinion

Opinion by

Ervin, J.,

This is an appeal from an order of the court below opening a default judgment which had been entered for failure to file an answer to a complaint in assumpsit.

The power of the court to grant relief from a judgment entered by default is frequently exercised in the interest of justice, and an appellate court will not in *479 terfere with the lower court’s action unless it is clearly-shown that its discretion has been abused. Smith v. Dale, 405 Pa. 293, 297, 175 A. 2d 78; Universal Builders Supply, Inc. v. Shaler Highlands Corporation, 409 Pa. 334; 337, 186 A. 2d 30. In this case the court below opened the judgment because the complaint was not self-sustaining. In the complaint it was averred that the plaintiff, Trenton Trust Company, purchased from the Trenton Kirby Company a time sales note executed by the defendants. The assignment was with recourse. After default the plaintiff was reimbursed by the Trenton Kirby Company. The averment in the complaint that the note was marked paid instead of being reassigned to Trenton Kirby Company does not establish any right of action in the plaintiff. Furthermore the depositions taken reveal that the vacuum cleaner which had been purchased by the defendants was returned shortly after purchase in good condition and no credit was allowed in the complaint for the returned article.

We do not believe that the court below abused its discretion in opening this judgment.

Order affirmed.

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Opinion by

Ervin, J.,

This is an appeal from an order of the court below opening a default judgment which had been entered for failure to file an answer to a complaint in assumpsit.

The power of the court to grant relief from a judgment entered by default is frequently exercised in the interest of justice, and an appellate court will not in *479 terfere with the lower court’s action unless it is clearly-shown that its discretion has been abused. Smith v. Dale, 405 Pa. 293, 297, 175 A. 2d 78; Universal Builders Supply, Inc. v. Shaler Highlands Corporation, 409 Pa. 334; 337, 186 A. 2d 30. In this case the court below opened the judgment because the complaint was not self-sustaining. In the complaint it was averred that the plaintiff, Trenton Trust Company, purchased from the Trenton Kirby Company a time sales note executed by the defendants. The assignment was with recourse. After default the plaintiff was reimbursed by the Trenton Kirby Company. The averment in the complaint that the note was marked paid instead of being reassigned to Trenton Kirby Company does not establish any right of action in the plaintiff. Furthermore the depositions taken reveal that the vacuum cleaner which had been purchased by the defendants was returned shortly after purchase in good condition and no credit was allowed in the complaint for the returned article.

We do not believe that the court below abused its discretion in opening this judgment.

Order affirmed.

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Bluebook (online)

198 A.2d 406, 202 Pa. Super. 478, 1964 Pa. Super. LEXIS 983, Counsel Stack Legal Research, https://law.counselstack.com/opinion/trenton-trust-co-v-husak-pasuperct-1964.

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