
    Sweitzer, Appellant, v. Crowley, et al.
    
      Judgment — Rule to open judgment — Discretion of court — Issue of fact — Appeals—Act of April 1, 1877, P. L. 58.
    
    A motion to open a judgment entered on a warrant of attorney is an appeal to the equitable powers of the court and on appeal to the Supreme Court under the Act of April 4, 1877, P. L. 53, the question is whether the discretion of the court has been rightly exercised; and an order making absolute a rule to show cause why judgment entered on a bond should not be opened will not be reversed where issues of fact which it was proper to refer to a jury were raised by the pleadings.
    Argued October 17, 1912.
    Appeal, No. 205, Oct. T., 1912, by plaintiff, from order of O. P. Somerset Co., Sept. T., 1912, No. 296, making absolute rule to open judgment in case of Simon P. Sweitzer y. Timothy J. Crowley and Emil Lipscher.
    Before Fell, C. J., Msstrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Buie to open judgment. Before Euppel, P. J.
    The opinion of the Supreme Court states the case.
    
      Error assigned was in making absolute rule to open judgment.
    
      Alexander King, with him John Q-. Ogle, for appellant.
    
      Charles F. Uhl, Jr., for appellee.
    January 6, 1913:
   Per Curiam,

This appeal is from an order making absolute a rule to show cause why a judgment entered on defendants’ bond should not be opened. The case was heard in the Common Pleas on petition, answer and replication. From the petition it appeared that the bond was given with a mortgage in part payment of the purchase money for a distillery “including 16,000 gallons of whiskey now in bond”; that it was agreed that if there were less than 16,000 gallons in bond a credit at the rate of seventy-five cents a gallon should be allowed for the deficit and this agreement was incorporated in the mortgage; that the whiskey had been withdrawn from bond and measured and that the aggregate thereof was 11,663 gallons. It was alleged in the answer that the deficit was 733 gallons only and that there had been an adjustment and full settlement between the parties in relation thereto. This was denied by the replication. A motion to open a judgment entered on a warrant of attorney is an appeal to the equitable powers of the court and upon appeal to this court, under the Act of April 4, 1877, P. L. 53, the question is whether the discretion of the court has been rightly exercised: Jenkintown Nat. Bank’s App., 124 Pa. 337; Boyd v. Kirch, 234 Pa. 432. In this case issues of fact were raised which it was proper to refer to a jury.

The order is affirmed at the appellant’s cost.  