
    No. 90
    HARBINE v. WINSLOW
    Montgomery County Court of Appeals
    No. 510,
    Jan. 4, 1923
    JUDGMENTS — Opening up default — (1) Motion and petition as evidence when not sworn to positively — (2) Equivalent to ho proof.
    Attorneys — J. T. Harbine, Jr., C. H. Kyle, for Harbine; Lenz, Sigler & Denlinger, for Winslow.
   BY THE COURT:

This proceeding seeks to review the judgment of the Court of Common Pleas opening up a default judgment. The Court of Appeals held that:

1. Upon a hearing on the petition and motion it was certified in the bill of exceptions that no evidence was offered in support of said motion or petition other than said motion and petition. Neither of them were sworn to positively and the same could not be considered evidence in the absence of an agreement to that effect. Therefore the effect of the above statement in the bill of exceptions would be equivalent to saying that no evidence was offered on said hearing.

2. It is clear that the burden of proof is upon the party seeking to set aside the default judgment and in the absence of any evidence the court below could not properly, after the judgment term, set aside the judgment. Judgment reversed and cause remanded for new trial.  