FRANKLIN T. CO. v. FRANKLIN V. E. CO., 309 Pa. 186 (1932)

163 A. 516

Franklin Trust Co. v. Franklin Valveless Engine Co., Appellant.

Supreme Court of Pennsylvania.September 29, 1932.
November 28, 1932.

Evidence — Mortgage — Scire facias — Practice, C. P. — Appeals — Failure to bring up written document — Affidavit of defense.

1. On an appeal, where appellant fails to bring up an item of evidence used in the court below, which is susceptible of reproduction, the reviewing tribunal must assume that if the omitted evidence

Page 187

were in the record, it would support the judgment of the court below. [187-8]

2. Such rule is applicable on the appeal from judgment against defendant for want of a sufficient affidavit of defense on a writ of scire facias sur mortgage, where the præcipe fully states the record of the mortgage, and the disputed evidence as set forth in the opinion of the court below shows that plaintiff filed a copy of the mortgage which was annexed to and made part of its answer to defendant’s motion to quash the writ of scire facias. [188]

Argued September 29, 1932.

Before FRAZER, C. J., SIMPSON, KEPHART, SCHAFFER, MAXEY, DREW and LINN, JJ.

Appeal, No. 156, March T., 1932, by defendant, from judgment of C. P. Venango Co., Jan. T., 1932, No. 30, for plaintiffs, for want of sufficient affidavit of defense, in case of Franklin Trust Co., trustee, v. Franklin Valveless Engine Co. Affirmed.

Rule for judgment for want of sufficient affidavit of defense in writ of scire facias sur mortgage. Before HARVEY, P. J., specially presiding.

The opinion of the Supreme Court states the facts.

Rule absolute. Defendant appealed.

Error assigned, inter alia, was order, quoting record.

Quincy D. Hastings, for appellant.

Eugene Mackey, for appellee, was not heard.

PER CURIAM, November 28, 1932:

Appellant complains that the court below, in entering judgment against it for want of a sufficient affidavit of defense on a writ of scire facias sur mortgage, overruled its plea of non est factum by a mere examination of the writ and answer without submitting disputed facts to a jury. Despite appellant’s assertion to the contrary, there can be no doubt but that the mortgage in question

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was properly before the lower court. This is apparent from the first paragraph of the præcipe for writ of scire facias which fully states the record of the mortgage as required by the rules of court of Venango County. Likewise, the docket entries, as set forth in the court’s opinion, show that plaintiff filed a copy of the mortgage which was annexed to and made part of its answer to defendant’s motion to quash the writ of scire facias.

However, appellant has not printed the mortgage in the record before us and in such case the rule applies that where appellant fails to bring up an item of evidence used in the court below, which is susceptible of reproduction, “the reviewing tribunal must assume that, if the omitted evidence were in the record, it would support the judgment of the court below”: Hurley v. Rieck Co., 256 Pa. 97, 101; see also Ligo v. Dodson, 299 Pa. 450.

Appeal dismissed at appellant’s cost.