Freeman v. Sanner

Opinion by Smith, J., In presenting an appeal to this court from the decision of the common pleas refusing to open a judgment, the appellant must show wherein the legal discretion vested in that tribunal has been abused. It is a mistake to assume that this court will interfere with the judgment merely because part of the testimony submitted, considered apart from all the evidence offered, would warrant a reversal. It must clearly appear that the conclusion of the court below, based on all the testimony in the case, was erroneous. The right to decide whether a judgment shall be opened rests, in the first instance, with the common pleas, and the correctness of its decision is to be passed upon by the appellate court. Here the conclusion of the common pleas on the application to open the judgment is well supported by the weight of the evidence. The learned judge, in his opinion discharging the rule, says : “ On the evidence submitted, we could not sustain a verdict for the defendant.” With this view we fully concur after an examination of the notes of evidence sent here. The determination of the court below will not be set aside unless it plainly appears that error has been committed in the result thus reached. Here the discretion of the court appears to have been properly exercised. See Kistler v. Scheirer, 10 Pa. Superior Ct. 220. Judgment affirmed.