MACHALICKA v. LUKASEVIC, 346 Pa. 487 (1943)

31 A.2d 164

Machalicka v. Lukasevic, Appellant.

Supreme Court of Pennsylvania.January 20, 1943.
March 22, 1943.

Judgments — Opening — Evidence — Sufficiency — Credibility of witnesses — Discretion of lower court — Appellate review.

1. In a proceeding upon a petition to open a judgment entered by authority of a power of attorney contained in a written instrument, an oath against an oath or a mere conflict of evidence does not warrant the submission of the issue to a jury; the evidence must carry such conviction of truth as to convince the chancellor that the judgment should be opened. [488]

2. In a proceeding to open judgment, the credibility of the witnesses and the weight of the evidence are for the chancellor. [488]

3. Where the issue is exclusively one of fact, the granting or refusing of the petition rests within the discretion of the court below, and the appellate court will not disturb such an order in the absence of a manifest abuse of discretion. [488]

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Argued January 20, 1943.

Before MAXEY, C. J.; DREW, LINN, STERN, PATTERSON and PARKER, JJ.

Appeal, No. 55, Jan. T., 1943, from decree of C. P. Delaware Co., Sept. T., 1940, No. 638, in case of Agnes Machalicka v. Mike Lukasevic. Order discharging rule affirmed.

Petition and rule to open judgment entered upon promissory note. Before ERVIN, J.

Order entered discharging rule. Defendant appealed.

Elgin E. Weest, for appellant.

Bernard Goldstein, with him M. J. Goldstein, for appellee.

PER CURIAM, March 22, 1943:

This appeal is from an order refusing to open a judgment entered by authority of a power of attorney contained in a promissory note. The issue raised was whether the note had been paid. Each party relied largely on his own testimony to sustain her or his contention. The credibility of the witnesses and the weight of the evidence were for the judge who sat as a chancellor: Augustine v. Wolf, 215 Pa. 558, 562, 64 A. 777 Jenkintown Nat. Bank’s Appeal, 124 Pa. 337, 17 A. 2. The issue having been exclusively one of fact, the granting or refusing of the petition to open rested within the discretion of the court below and we will not disturb such an order in the absence of a manifest abuse of discretion: Wright v. Linhart, 243 Pa. 221, 89 A. 973; Mutual B. L. Assn. v. Walukiewicz, 322 Pa. 240, 185 A. 648; Perri v. Perri, 335 Pa. 394, 6 A. 775. An oath against an oath or a mere conflict of evidence does not warrant the submission of the issue to a jury. The evidence must carry such conviction of truth as to convince the judge that the judgment should be opened: Mielcuszny v. Rosol, 317 Pa. 91, 94, 176 A. 236. One of the late pertinent cases i Schuylkill Trust Co. v. Sobolewski,

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325 Pa. 422, 424, 190 A. 919, where Mr. Justice STERN thoroughly covered the subject here involved. We find no abuse of discretion.

The order discharging the rule is affirmed at appellant’s cost.