Robert W. Honeyman, William F. Fox and Fox & Honeyman, Norristown, for appellant.
S. Thomas Bulfamonte, Norristown, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 170 Pa. Super. Page 155]
This appeal is from an order opening a judgment entered upon a warrant of attorney contained in a judgment note.
[ 170 Pa. Super. Page 156]
On January 10, 1950, Fred C. Ehnes, appellant, caused a judgment to be entered against Samuel R. Mang, appellee, by virtue of a warrant of attorney to confess judgment contained in a promissory note under seal dated August 20, 1932, in the amount of $288 together with interest and collection fees, or a total of $631.77. On March 11, 1950, defendant filed his petition to open judgment interposing the defenses of forgery, fraud, error, payment, invalid assignments and endorsements, usury, and that plaintiff was not a holder in due course. An answer was filed denying material averments; depositions were taken and after argument before the court in banc, the present order opening the judgment was entered. This appeal followed.
An application to open a judgment entered upon a warrant of attorney is an equitable proceeding governed by equitable principles and is addressed to the sound discretion of the court below. On appeal, the question is whether the court below kept within the bounds of its discretionary power, Singer v. Ritter, 167 Pa. Super. 154, 158, 74 A.2d 520, for the order of the court below in such circumstances will be reversed only for a clear or manifest abuse of discretion. Oppenheimer v. Shapiro, 163 Pa. Super. 185, 60 A.2d 337.
Plaintiff contends that under the provisions of Section 59 of the N.I.L.*fn1 he is prima facie presumed to be a holder in due course; that the defendant produced no evidence to rebut or disturb this presumption of fact;
[ 170 Pa. Super. Page 157]
that the defense of payment interposed by the defendant would not be available against a holder in due course and that therefore the court below abused its discretion in opening the judgment. Defendant produced evidence designed to prove that (1) plaintiff was not a holder in due course for the reason that he became the holder after maturity; and (2) payment had been made. Other defenses raised in the petition to open were not pursued.
Defendant testified that in 1932, in the financing of an automobile, he gave the note in question to the Counties Finance Company; that he was unable to make monthly payments, and in fact made no payments on the note; that on or about October 22, 1932, the finance company agreed to discharge defendant's liability upon delivery of possession of the automobile to them and their payment of $25 to him. Defendant testified that an officer of the finance company '* * * gave me the $25 and I gave him the car. He said he would see that I would be satisfied, he would take care of the rest of the papers when he came to the office.' The testimony also establishes that defendant never received a demand for payment from any one until plaintiff appeared at his home ...