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KINE v. FORMAN (06/27/61)

June 27, 1961

KINE
v.
FORMAN, APPELLANT.



Appeal, No. 289, Jan. T., 1960, from order of Court of Common Pleas No. 1 of Philadelphia County, Dec. T., 1937, No. 1482, in case of Dr. Israel Kine et al. v. Louis Forman et al. Order affirmed.

COUNSEL

David Freeman, for appellant.

Harry Smuckler, for appellee.

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

Author: Musmanno

[ 404 Pa. Page 302]

OPINION BY MR. JUSTICE MUSMANNO.

On December 17, 1937, Oscar Rosenbaum filed and obtained judgment on a note, with a warrant for confession of judgment, signed by the defendants Louis Forman and Max Forman, and made payable to Dr. Israel Kine and Oscar Rosenbaum.

On September 16, 1938 the defendants petitioned the Court of Common Pleas of Philadelphia County to strike off the judgment on the ground that Dr. Kine had died before the note was recorded and that, therefore, the judgment was entered without his authority or that of a personal representative. Rosenbaum filed an answer asserting that he was sole owner of the judgment note since he had purchased Dr. Kine's interest in the note prior to the latter's death and that there was an oral assignment of the note by Dr. Kine to him. Rosenbaum had a rule issued upon the defendants to take depositions in accordance with Rule 209 of the Pennsylvania Rules of Civil Procedure. The depositions, however, were not taken and the defendants elected to proceed upon petition and answer.

The court discharged the rule to strike off on the basis that as one of the joint payees, Rosenbaum, was entitled to record the note with or without the consent of the other joint payee. We find it unnecessary to study the correctness of this ruling, since we affirm the court's discharge of the rule on another ground.

When a petition is filed to open or strike off a judgment, and an answer is filed by the plaintiff, the averments of fact properly set forth in the plaintiff respondent's answer must be accepted as true if the defendant proceeds without taking depositions: Philadelphia Gas Heating Co. v. Sanders, 181 Pa. Superior Ct. 510; Adelman v. McShain, Inc., 148 Pa. Superior Ct. 138.

Therefore, accepting as true the averments of fact in Rosenbaum's answer that he was the sole owner of

[ 404 Pa. Page 303]

    the judgment note for the reason stated, Rosenbaum, as assignee, necessarily had the authority to confess judgment on the note without any joinder ...


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