A.S. T. Co., Appellant, v. Schock and Schock.

Superior Court of Pennsylvania.October 8, 1930.
November 20, 1930.

Judgment — Petition to open after expiration of term — Discretion of court.

A judgment entered by default for want of an affidavit of defense may be opened after the expiration of its term if, in the opinion of the court, justice requires it.

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Argued October 8, 1930.

Appeal No. 266, October T., 1930, by plaintiff from order of M.C., Philadelphia County, December T., 1929, No. 187, in the case of Ames Shovel and Tool Company v. Cosmos J. Schock and Edwin P. Schock, trading as Schock Coal Company.

Before TREXLER, P.J., KELLER, LINN, GAWTHROP, CUNNINGHAM, BALDRIGE and WHITMORE, JJ. Affirmed.

Rule to open judgment entered by default for want of an affidavit of defense. Before CASSIDY, J.

The facts are stated in the opinion of the Superior Court.

The court made absolute the rule. Plaintiff appealed.

Error assigned was the order of the court.

Albert Loeb Katz, for appellant.

Barnet Lieberman, and with him Herman D. Levinson, for appellee.

PER CURIAM, November 20, 1930:

Judgment was entered by default for want of an affidavit of defense. After the term, a petition was presented to the court asking that judgment be opened as to him, alleging that he was not a member of the firm sued and offering as an excuse for his failure to enter an affidavit of defense that he had told his co-defendant about the matter and that he had informed him that the error of his inclusion in the suit had been corrected.

There was no answer to the petition and the court opened the judgment. It is very evident that if the unanswered allegations of the petition are correct, and if the judgment were not opened, the petitioner would

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be required to pay a debt for which he is not liable. The court in its discretion, if in its opinion justice required it, could open the judgment. The only objection offered by the plaintiff is that the court did not have power to do so after the term. The power of the court to open a judgment entered by default after the term is undoubted. New Amsterdam B. L. Assoc. v. Moyerman, 95 Pa. Super. 47, and cases there cited.

The judgment is affirmed.