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DINUNZIO v. DINUNZIO. (11/15/62)

November 15, 1962

DINUNZIO, INC., APPELLANT,
v.
DINUNZIO.



Appeal, No. 216, Oct. T., 1962, from order of Court of Common Pleas of Montgomery County, No. 61-5685, in case of Federico DiNunzio, Inc., assignee, et al. v. Federico DiNunzio et al., trustees in partition. Order affirmed.

COUNSEL

J. William Ditter, Jr., with him Ditter & Jenkins, for appellant.

Jules Pearlstine, with him Pearlstine, Salkin & Hardiman, for appellee.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Flood

[ 199 Pa. Super. Page 454]

OPINION BY FLOOD, J.

This is an appeal from an order dismissing the plaintiff's motion for judgment against the defendant, Ida DiNunzio, for want of a sufficient amended answer to a writ of scire facias to revive a judgment. Judgment has been taken against the other defendants for want of an affidavit of defence.

The original judgment was entered on April 5, 1946, in favor of the Hatfield National Bank and against the defendants, Federico and Ida DiNunzio, in the sum of $3500.

The writ before us, by which the plaintiff seeks to have judgment of revival entered against the defendant, Ida DiNunzio, in the full sum of $3500 with interest from April 5, 1946, recites, among other things, that on January 17, 1957, the judgment was marked to the use of the plaintiff, Federico DiNunzio, Inc.

The amended answer of the defendant, Ida DiNunzio, avers that only $2400, and not $3500, of principal is due because the original obligation was reduced by two payments, made by the obligors, Federico and Ida DiNunzio, one of $1000 on October 28, 1954, and one of $100 on January 25, 1955.

The plaintiff seeks to avoid this obvious bar to the entry of judgment of revival on the pleadings for the sum of $3500 with interest by contending that the averment of part-payment in the answer is vague and insufficient. The averment as to part-payment in the amended answer is in these words:

"Defendant Ida DiNunzio denies that there is presently due and owing to the plaintiff the sum of $3,500 as set forth in plaintiff's claim filed in the Sci Fa to Revive. That on the contrary the only sum that was due and owing to the Hatfield National Bank now known as the Penn Valley National Bank, on January 17, 1957, when said ...


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