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TRENTON TRUST COMPANY v. HUSAK. (03/17/64)

THE SUPERIOR COURT OF PENNSYLVANIA


March 17, 1964

TRENTON TRUST COMPANY, APPELLANT,
v.
HUSAK.

Appeal, No. 413, Oct. T., 1963, from order of County Court of Philadelphia, Dec. T., 1962, No. 6543-C, in case of Trenton Trust Company v. Robert Husak et al. Order affirmed.

COUNSEL

Lionel B. Gumnit, for appellant.

Richard I. Torpey, for appellees.

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

Author: Ervin

[ 202 Pa. Super. Page 478]

OPINION BY ERVIN, J.

This is an appeal from an order of the court below opening a default judgment which had been entered for failure to file an answer to a complaint in assumpsit.

The power of the court to grant relief from a judgment entered by default is frequently exercised in the interest of justice, and an appellate court will not interfere

[ 202 Pa. Super. Page 479]

    with the lower court's action unless it is clearly shown that its discretion has been abused. Smith v. Dale, 405 Pa. 293, 297, 175 A.2d 78; Universal Builders Supply, Inc. v. Shaler Highlands Corporation, 409 Pa. 334, 337, 186 A.2d 30. In this case the court below opened the judgment because the complaint was not self-sustaining. In the complaint it was averred that the plaintiff, Trenton Trust Company, purchased from the Trenton Kirby Company a time sales note executed by the defendants. The assignment was with recourse. After default the plaintiff was reimbursed by the Trenton Kirby Company. The averment in the complaint that the note was marked paid instead of being reassigned to Trenton Kirby Company does not establish any right of action in the plaintiff. Furthermore the depositions taken reveal that the vacuum cleaner which had been purchased by the defendants was returned shortly after purchase in good condition and no credit was allowed in the complaint for the returned article.

We do not believe that the court below abused its discretion in opening this judgment.

Disposition

Order affirmed.

19640317

© 1998 VersusLaw Inc.



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