Kalbach ex rel. Reber v. Fisher

Rogers, J. (after stating the case,), delivered the opinion of the court as follows:— There are many cases in which writs of error do not lie, frorii the decisions of Courts,of Common Pleas, such as granting or refusing a new trial, opening or refusing to open á judgment, and motions of various kinds, in which parol evidence is heard, without placing it on the record. Ordroneaux v. Prady, 6 Serg. & Rawle, 512. The power of the Court of Common Pleas, in relation to opening judgments, is most ample, and policy requires that itshould ■ be liberally used, otherwise great and manifest injustipe would be [324] the consequence, from the great variety of shapes which fraud may assume in the complicated .transactions of men. It depends upon the sound discretion of the court, which must be regulated more by the particular circumstances of e very case, than by any precise and known rule of law. From the constitution of this court, it is impossible that we can be made fully acquainted with all the circumstances,. and there would be more danger of injury, from revising matters of this1 kind, than would result now and then from an improper or arbitrary exercise of this discretion. It is not denied, that if the court had refused to; open the judgment, the defendant would have-been without remedy; and yet there is less dang'er in opening than in refusing to open a judgment. In the one ease, the party is concluded, ánd in the other, he has an opportunity of a fair and impartial trial before a jury, who will give him the benefit, under the 'direction of the court, of an argument to be derived from lapse of time, and a consequent loss of vouchers, or other testimony. The practice of opening judgments, without stint, or limit, except the sound discretion of the court, has obtained-since the.first.settlement of the province, and I am yet to learn, it has-been altered with any injustice to suitors. On the contrary, we all know, it has frequently been the means of unravelling the most-secret and unjust schemes of oppression and fraud, which could not have been reached without a free and liberal exercise of this extraordinary power of the court. This complaint comes with a bad grace from the defendant. He has had an opportunity of trying his cause before a jury, and alleges no errors in the trial, but contents himself with simply contending, that by lapse of time, the defendant is prevented from investigating the merits of his case, or in other words, that an unjust demand is sanctioned by time alone. Two judgments were rendered, and the effect this ought to have, would be to make the Common Pleas more cautious in listening to the complaint, of the defendant. It is .by no means uncommon for endorsers to take an absolute judgment from the drawer of a note as an indemnity. The evidences of the real nature of the transaction sometimes rest in the memory of the witnesses, and sometimes are reduced to writing. As long as the'endorsements Continue, which is sometimes for years, it is necessary to revive the judgment by Scire Facias, which of course would be done by consent. In such a case, could it be possible, that the Court of Common Pleas could hot give relief against an unjust attempt to enforce payment of the money by execution, without regard to the time the' judgment was rendered, or to the number of renewals by Scire Facias? I state this instance; in order to show-the danger of attempting to limit the time of affording relief by application to the sound discretion of the court. The court.are of opinion, that no writ of error lies to opening of the judgment by the Common Pleas, and that the judgment be affirmed. Judgment affirmed.