Judgments — Opening judgments — Evidence — Sufficiency.
A rule to open a judgment, entered by confession, is properly discharged, where the plea was payment by the defendant and the depositions in support thereof contained no evidence of such payment.
Argued October 10, 1928.
OPINION BY LINN, J., November 14, 1928:
This appeal is from the refusal to open a judgment entered by confession. The petition to open, filed in 1924, avers that defendant had been indebted to plaintiffs' testator and to G.C. Seidel Company, Inc., and that he paid the indebtedness to both parties, including that for which the judgment note was given, by transferring to plaintiffs' testator certain shares of the capital stock of the corporation. The answer denied petitioner's averment. Depositions on the part of defendant were taken in April, 1924, but were not filed until February, 1928. As defendant is incompetent to testify to matters occurring between him and Seidel in Seidel's lifetime, it is perhaps not surprising to find the depositions bare of any suggestion that supports the averment of payment made in the petition to open. In the circumstances the court was bound to refuse the petition.
Order affirmed.