
    International Harvester Company of America v. Miller, Appellant.
    
      Judgment — Opening judgment — Petition—Refusal of rule — Discretion of court — Appeals—Review—Acts of April 4,1877, P.L.S8, and May 20, 1891, P. L. 101.
    
    1. The court of common pleas in the exercise of a sound discretion may refuse a rule to open a judgment upon consideration of a petition for the rule, without answer filed.
    2. Under the Acts of April 4,1877, P. L. 53, and May 20,1891, P. L. 101, a defendant whose petition for a rule to open a judgment has been dismissed, may take an appeal from such order, but the appellate court on such an appeal will examine the record only to determine whether the discretion of the lower court has been properly exercised.
    3. The appellate court will not reverse an order dismissing a petition for a rule to open a judgment where the facts set out in the petition are evasive and indefinite, without any allegation of fraud, accident or mistake in the execution of the judgment note, or in the accuracy of any of its terms, and where there is no explanation given as to why the defendant did not present the petition in person, instead of through another described as her agent.
    Argued Feb. 28, 1912.
    Appeal, No. 245, Oct. T., 1910, by defendant, from order of C. P. Centre Co., May T., 1907, No. 32, dismissing petition for rule to open judgment in case of International Harvester Company of America v. Mollie Miller.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Porter, JJ.
    Affirmed.
    Petition for rule to open judgment.
    The petition was as follows:
    The petition of Molly Miller, the above-named defendant, respectfully shows:
    That the judgment is entered upon a note bearing date March 7, 1907, containing a warrant of attorney to confess judgment, and an execution was placed in the hands of the sheriff on September 27, 1910, by virtue of which he levied upon goods and property of Molly Miller, in Howard township, Centre county, and has advertised the same for sale on October 10, 1910.
    Your petitioner further shows that prior to the execution of the said judgment note, J. K. Johnston, Esq., of Bellefonte, was attorney for the plaintiff, and N. B. Spangler, Esq., was attorney for the defendant.
    That the plaintiff had sold two binders to B. P. Schwartz; that one of them had been burned in a fire which occurred in the property in which the defendant and B. P. Schwartz were interested, and the other had been sold by B. P. Schwartz to one A. N. Fidler, a resident of Howard township.
    That at the time of the execution of the note the said Fidler was possessed of personal property of the value from $400 to $500, which property had been sold by the sheriff, but still remained in the possession of Fidler. When J. K. Johnston, Esq., asked B. P. Schwartz, the agent of Molly Miller, to persuade or induce her to sign the judgment note to cover two notes which the said B. P. Schwartz had formerly given to the plaintiff, he agreed that there was an execution then in the hands of the sheriff against A. N. Fidler who was possessed of personal property to the value of between $400 and $500; that the property would be sold at sheriff’s sale and that the said N. B. Spangler, Esq., and J. K. Johnston, Esq., agreed that if the defendant would execute the note they would see that the personal property above mentioned would be gotten out of the hands of A. N. Fidler and delivered to the defendant to secure her against the note.
    That relying upon the promises and undertaking of the said two attorneys, the defendant executed the note and delivered it into the hands of J. K. Johnston, Esq.
    That the property was sold at sheriff’s sale on January 18, 1907, and purchased by J. K. Johnston. The property was sold at very low figures; that neither Mr. Johnston nor Mr. Spangler ever did anything so far as your petitioner knows to deliver the property sold into the hands of your petitioner.
    That B. P. Schwartz procured the binder, two cows, lumber and truck wagon, and perhaps another item or two, of the property, which was all the defendant was able to get. Mr. Fidler, in whose possession the property was, refused to allow her agents, B. P. Schwartz and George Confer, to take any more of the property, and by threats and force compelled them to go away. That the said B. P. Schwartz on the same day which they were driven away, went to Mr. Spangler at Bellefonte, and reported to him the condition matters were in and urged the taking of some action by which the possession of the property would be delivered to Miss Miller or her agents. That so far as deponent knows, nothing was ever done by either Mr. Spangler or Mr. Johnston or their clients, to secure the possession of the property which they agreed should be placed "in her possession, and which was sold by the sheriff, from that time until the present.
    Your petitioner therefore avers that the failure upon the part of the counsel for the plaintiff to perform the agreement made between them at the time of the execution of the note, has utterly failed. Had it been carried out according to its terms, your petitioner would have been placed in possession of property sufficient — and more than sufficient — to pay the entire indebtedness which she had assumed. She therefore prays the court to enter a rule on the plaintiff to show cause why the judgment should not be opened and the defendant let into a defense. And she will ever pray.
    Mollee Miller, by her agent, B. P. Schwartz.
    Clinton County, ss:
    B. P. Schwartz being duly sworn according to law doth depose and say he is acquainted with the facts set forth in the foregoing petition and that they are true and correct to the best of his knowledge and belief.
    B. P. Schwartz.
    
      Error assigned was order dismissing petition.
    
      C. S. McCormick, with him Clement Dale, for appellant.
    
      J. K. Johnston, for appellee.
    October 14, 1912:
   Opinion by

Orlady, J.,

On March 11, 1907, a judgment was entered against the defendant on a note, under seal, for the sum of $250. On September 28, 1910, an execution was issued on this judgment, and on October 15, following, a petition was presented to the court for a rule to show cause why it should not be opened and the defendant be permitted to make defense thereto. Upon consideration by the court of the petition, and without an answer being filed, the prayer for the rule was refused. Under the Act of April 4, 1877, P. L. 53, 2 Stewart’s Purdon, 1437, a party aggrieved by the decision of the court of common pleas in an application to have a judgment, entered by virtue of a warrant of attorney or on a judgment note opened, and the defendant let into a defense, may have the same reviewed on appeal in like manner as in proceedings in equity cases, and by the Act of May 20, 1891, P. L. 101, 2 Stewart’s Purdon, 1438, a right of appeal is given from orders opening, vacating and striking off judgments of any kind, whether entered by amicable confession or otherwise, or to the refusal to open, vacate or strike off such judgment.

There is nothing in either act which affects the discretionary power of the court below. It is an equitable proceeding addressed to its discretion. To reverse a decree entered in such a case the record should affirmatively show that the court exceeded the judicial discretion which every judge must necessarily exercise in passing primarily on controverted questions of fact, or on the sufficiency of a petition calling for equitable interference. The judge to whom the application is addressed acts as a chancellor, and the appellate courts will examine the record only to determine whether this discretion has been properly exercised, and will not reverse unless it clearly appears that there has been an abuse of such discretion: Com. v. Mellet, 196 Pa. 243; Shannon v. Castner, 21 Pa. Superior Ct. 294; Whitecar v. Knights of G. E., 18 Pa. Superior Ct. 631; Fryberger v. Motter, 24 Pa. Superior Ct. 317; Woodward v. Carson, 208 Pa. 144.

The rule to open a judgment and let a defendant into a defense is peculiar to Pennsylvania practice, and is a clear example of the system of administering equity under common-law forms. It was devised in the absence of a court of chancery, as a substitute for a bill in equity to enjoin further proceedings at law: Mitchell’s Motions and Rules, 118. The petition for such a rule should set forth clearly and specifically all the facts on which the petitioner relies to induce a chancellor to grant equitable relief. Nothing should be left to inference. As stated in Cochran v. Eldridge, 49 Pa. 365, “no court of justice will set aside or even be led to look into a solemn judgment on light or trivial grounds.” The power of the court to grant or refuse such a rule is ample, and the validity of the conelusion reached depends upon the proper exercise of the sound discretion of the court, which is frequently controlled by the particular circumstances of the case rather than by any precise rule of law. The petition should present the same degree of certainty and particularity which is required in a bill in equity or in a statement in an action at law.

The facts set out in the petition presented by the defendant, are evasive and indefinite. There is no allegation of fraud, accident or mistake in the execution of the note, or in the accuracy of any of its terms. It is presented “by her agent, B. P. Swartz, ” and, while he states in the affidavit “that he is acquainted with the facts set forth in the foregoing petition, and that they are true and correct to his knowledge and belief,” he fails to state, that it is presented at her request, or on her behalf, or give any explanation for her not acting in person. The correct rule would seem to be that when a defendant puts in a stranger’s affidavit, it must show upon its face sufficient reason why it was not made by the defendant himself; that a real disability existed which prevented him from making it, and the circumstances giving rise to the disability: Phillips v. Allen, 32 Pa. Superior Ct. 356. While he stands a stranger to the record he narrates facts which so intimately associate him with the transaction as to require a more definite and specific statement of her defense to the note.

Construed in its most favorable light, the petition sets out no more than that her own counsel, with full knowledge of all the facts and acting in her interest made an agreement with the counsel of the plaintiff in regard to the disposition of certain personal property that was to be sold by the sheriff on an execution against a third party. The note in dispute was signed by her with full knowledge of .all that had been done by her attorney, and it is not suggested that he failed in using reasonable business and professional judgment. The only grievance is, that subsequently, a controversy arose as to the terms of the agreement, but not as to the amount or terms of the note. The plaintiff in the note is not charged with any wrongdoing in this matter and was not a party to the succeeding dispute in regard to the agreement made by counsel, nor is it stated that it profited by it in any way.

No abuse of discretion is shown in the action of the. court refusing to grant the rule, and it is not necessary to dispose of the motion to quash on the ground that the note on which the judgment is entered contains an agreement that no appeal shall be taken, though many authorities might be cited in favor of such contention: Watson v. Wetter, 91 Pa. 385; Seagrave v. Lacy, 28 Pa. Superior Ct. 586; Jones v. Scott, 209 Pa. 177; Groll v. Gegenheimer, 147 Pa. 162; Hanscom v. Chapin, 27 Pa. Superior Ct. 546.

The judgment is affirmed.  