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ROSENBAUM v. NEWHOFF (06/30/59)

June 30, 1959

ROSENBAUM
v.
NEWHOFF, APPELLANT.



Appeals, Nos. 345, 346, and 347, Jan. T., 1958, from judgments of Court of Common Pleas No. 2 of Philadelphia County, June T., 1927, Nos. 16701, 16702, and 16703, in case of Oscar Rosenbaum et al. v. Emanuel H. Newhoff, executor of the estate of Harry Bess, deceased et al. Judgments reversed; reargument refused August 3, 1959. Proceedings on petition to open judgment. Before GRIFFITHS, J. Adjudication filed finding for plaintiffs; defendant's exceptions to adjudication dismissed and judgments entered. Defendant appealed.

COUNSEL

Charles S. Schermer, with him David R. Rosenwald, for appellant.

Louis E. Levinthal, with him Dilworth, Paxson, Kalish, Kohn & Dilks, for intervening appellant.

Bryan A. Hermes, for appellees.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Mcbride, JJ.

Author: Jones

[ 396 Pa. Page 501]

OPINION BY MR. JUSTICE BENJAMIN R. JONES

Oscar Rosenbaum, the appellee,*fn1 on August 13, 1927 entered three judgments by confession upon judgment notes executed in 1926 against Harry Bess and Dora Bess, his wife, (both now deceased). On August 20,

[ 396 Pa. Page 5021927]

, Rosenbaum issued a writ of fieri facias on one of the judgments; this writ was returned "nulla bona". On August 7, 1942 and March 28, 1947 writs of scire facias were issued to revive the three judgments; upon the appellee's express direction to the sheriff, these writs were returned "nihil habet". On March 4, 1952 writs of scire facias were issued again upon these judgments; again, at appellee's express direction, these writs were returned "nihil habet". Subsequently, a judgment of revival "upon one return of "nihil" was entered. Dora Bess, co-maker of two of the judgment notes died in 1943; Harry Bess, her husband, died in 1956.

Emanuel H. Newhoff, Executor of Harry Bess's Estate, petitioned to open the judgments and the judgments were opened. Upon opening the judgments and after the taking of testimony the court below entered judgments in favor of the judgment creditor - appellees. From the entry of these judgments these appeals were taken.

The appellant has several contentions: (1) since all the judgments were entered more than twenty years ago, a presumption of their payment has arisen and this presumption stands unrebutted by appellees; (2) that the court below erred in admitting certain exhibits into evidence and in permitting an office associate of the appellee to testify as to the contents of these exhibits.

After the lapse of twenty years, all debts, including judgments not within the orbit of the Statute of Limitations are ...


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