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BROOKS v. RUDOLPH (05/29/52)

May 29, 1952

BROOKS
v.
RUDOLPH, APPELLANT



Appeals, Nos. 58 and 59, Jan. T., 1952, from judgments of Court of Common Pleas of Chester County, Oct. T., 1950, Nos. 22 and 23, in cases of Alice A. Brooks, to use of Warren F. Brooks v. Mrs. Mary A. Rudolph, now Mrs. Mary A. Russell and Richard Brooks, to use of Warren F. Brooks v. Same. Judgments affirmed.

COUNSEL

William T. Connor, with him Greenwood & Greenwood, for appellant.

W. Blake Metheny, with him Raymond S. Shortlidge and John Adams, Jr., for appellees.

Before Drew, C.j., Stern, Stearne, Jones, Bell, Chidsey and Musmanno, JJ.

Author: Jones

[ 371 Pa. Page 22]

OPINION BY MR. JUSTICE JONES

On October 8, 1929, Mary A. Rudolph, now Mary A. Russell, the defendant and present appellant, executed two judgment notes, the one in favor of Alice A. Brooks and the other in favor of Richard Brooks. Judgment was entered on each of these notes on July 30, 1931, and on January 23, 1934, both judgments were marked of record to the use of Warren F. Brooks, the appellee. On October 30, 1950, the use-plaintiff issued

[ 371 Pa. Page 23]

    writs of scire facias to revive and continue the liens of these judgments. The defendant filed an affidavit of defense to each of the writs; and the use-plaintiff thereafter ruled the defendant for judgments for want of sufficient affidavits of defense. After argument, the learned court below, in thorough and wellreasoned opinions, made the rules absolute and entered the judgments for the use-plaintiff from which these appeals were taken.

The affidavits of defense are so similar that they can be considered together. As summarized by the appellant in her history of the case, the defendant's affidavits (1) deny that the judgments entered against the defendant on July 30, 1931, were due and payable and aver that the notes on which the judgments were entered were paid in full to Alice A. Brooks, the payee in the one instance, prior to January 23, 1934, and to Richard Brooks, the payee in the other instance, prior to his death in November, 1934; (2) deny that the judgments were assigned by Alice A. Brooks and by Richard Brooks to the use of Warren F. Brooks on January 23, 1934, or at any other time; (3) aver that, by reason of the lapse of time, a presumption of payment arose in respect of each judgment; and (4) aver that no demand for payment of the judgments was made by the use-plaintiff prior to his issuance of the writs of scire facias on October 15, 1950.

While the affidavits of defense baldly allege that the judgments were paid, they fail to set forth with any particularity how and when payment was made or the person or persons to and by whom the judgments were paid. Such averments are essential to a sufficient allegation of payment. In short, payment is a legal conclusion in support of which it is necessary that facts be averred: see Hiestand v. Williamson, 128 Pa. 122, 131, 18 A. 427; McCracken v. The First Reformed Presbyterian Congregation of Pittsburgh, 111 Pa. 106, 109,

[ 371 Pa. Page 242]

A. 94; and Leas v. Hafer, 39 Pa. Superior Ct. 160, 162. The defendant's averments of payment in the present instance were ...


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