Sweitzer v. Crowley

Per Curiam, This appeal is from an order making absolute a rule to show cause why a judgment entered on defendants’ bond should not be opened. The case was heard in the Common Pleas on petition, answer and replication. From the petition it appeared that the bond was given with a mortgage in part payment of the purchase [283] money for a distillery “including 16,000 gallons of whiskey now in bond”; that it was agreed that if there were less than 16,000 gallons in bond a credit at the rate of seventy-five cents a gallon should be allowed for the deficit and this agreement was incorporated in the mortgage; that the whiskey had been withdrawn from bond and measured and that the aggregate thereof was 11,663 gallons. It was alleged in the answer that the deficit was 733 gallons only and that there had been an adjustment and full settlement between the parties in relation thereto. This was denied by the replication. A motion to open a judgment entered on a warrant of attorney is an appeal to the equitable powers of the court and upon appeal to this court, under the Act of April 4, 1877, P. L. 53, the question is whether the discretion of the court has been rightly exercised: Jenkintown Nat. Bank’s App., 124 Pa. 337; Boyd v. Kirch, 234 Pa. 432. In this case issues of fact were raised which it was proper to refer to a jury. The order is affirmed at the appellant’s cost.