
    Geiser v. Kleckner, Appellant.
    February 28, 1908:
    
      Judgment — Opening judgment — Evidence—Discretion of court — Finding of facts.
    
    On a rule to open a judgment where the testimony of the plaintiff and the defendants is at variance, hut that of the plaintiff is corroborated by dates and other circumstances, the appellate court will not review the discretion of the court below in refusing to open the judgment.
    Argued Dec. 4, 1907.
    Appeal, No. 93, Oct. T., 1907, by defendant, from order of C. P. Lehigh Co., Jan. T., 1906, No. 171, discharging rule to open judgment in case of Mary A. Geiser v. Levi H. Kleckner.
    Before Rice, P. J., Porter, Henderson, Morrison, Head and Beaver, JJ.
    Affirmed.
    Rule to open judgment.
    The opinion of the Superior Court states the case.
    
      Error assigned was the order of the court discharging rule to open judgment.
    
      Lawrence H. Rupp, with him Edwin J. Lichtenwalner, for appellant.
    
      Thos. F. Diefenderfer, for appellee.
   Opinion by

Beaver, J.,

Appellant, upon calm reflection and under strikingly changed conditions, has doubtless in his own mind good ground for concluding that he had done a foolish thing in giving to the appellee the judgment note upon which judgment was subsequently entered in the common pleas, which he seeks to have opened, so as to allow him to contest the payment of the consideration upon which it was founded.

That there was a good consideration for the note is not denied, and there is no allegation of any kind of fraud or duress in procuring it.

The testimony of the appellant and that of the appellee are strikingly at variance". That of the latter, however, is corroborated by dates and other circumstances which lead to the conclusion not only that credence may, but should be, given to it.

The court finds facts based upon sufficient evidence that the restrictions and so-called “concurrences,” which relate to a note dated May 17, 1904, admittedly destroyed, do not extend to and form part of the contract expressed in the later note dated August 20, 1904, upon which the judgment in controversy was entered, and that the last note was given “absolutely without condition.” These conclusions seem to us to be based upon and fully justified by the evidence and, in view of this opinion, we cannot convict the court below of an abuse of discretion in refusing to open the judgment.

Decree affirmed and appeal dismissed at the costs of the appellant.  