Hottenstein v. Haverly

Opinion by Mb. Chief Justice Stebbett,

This proceeding was commenced by defendant’s petition to the court below, setting forth certain facts, and praying for a rule on the plaintiff to show cause why the judgment therein specified should not be satisfied. The rule as prayed for was granted, and the matter was so proceeded in by taking testimony, etc., that on January 14, 1896, the court made the following order:

“ After consideration of the evidence, it is ordered that the above judgment, No. 87, September term, 1892, be opened and the defendant is allowed to come in and defend. And an issue is formed wherein W. J. Hottenstein shall be plaintiff and A. C. Haverly defendant, to ascertain whether said judgment has been paid or not.”

In due course, this issue came on for trial by jury, and in May, 1896, a verdict in favor of the defendant was rendered, and afterwards judgment was entered thereon for costs.

The first three specifications allege error in granting the issue and in not discharging the rule to show cause why the judgment should not be marked satisfied of record, etc.

While it would perhaps have been more regular to have discharged that rule and entertained an application to open the judgment, etc., the court, having all the evidence before it, was not bound to pursue that course. In its discretion, it acted upon the evidence adduced by the parties, and made the order above quoted. In this, there was no error that would justify a reversal of the judgment and vacation of the order awarding the issue.

*308 The remaining specifications, fourth to seventh inclusive, complain of the rulings of the learned trial judge therein referred to. It is unnecessary to consider these specifications in detail. We find nothing in the record that would justify us in sustaining either of them. The issue under the evidence involved questions of fact which were clearly for the consideration of the jury, and were submitted to them in an impartial and fully adequate charge of which the plaintiff in the issue has no just reason to complain.

The defendant’s contention was that while there was an execution out for the sale of his real estate on a venditioniexponas, he presented a petition to the court and obtained a stay of that writ, and that “ during the pendency of that stay an arrangement was made with the plaintiff by which the stay was to be discharged, and in consideration of that the plaintiff in that suit was to accept the farm upon which the levy had been made; that the farm was to be sold and that plaintiff was to accept, in full consideration of the judgment, the amount that he wbuld realize from the sale of that farm; ” and, on the part of the defendant, that .arrangement was fully carried out. The evidence in support of this contention was quite sufficient to carry the case to the jury on the controlling questions in the case, and by their verdict they found the facts in defendant’s favor.

Judgment affirmed.