Opinion
April 15, 1931.
July 8, 1931.
Judgments — Partnership — Opening — Petition of creditor — Non-assenting partner.
On a petition to open a judgment entered by confession on a judgment note against a partnership conducting a baking business, the petitioner alleged that she owned the business and that the signer of the note had no authority to confess judgment and that he was not a partner in the enterprise. The evidence established, however, that the petitioner was a mere creditor of the partnership, having furnished or at least secured its capital, and that she was not its owner.
In such case the petitioner had no standing to ask that the judgment be opened and the order of the court below dismissing the petition will be affirmed.
It is only a non-assenting partner that can call in question the validity of a judgment confessed by his copartner for a firm debt.
Appeal No. 55, April T., 1931, by defendant from judgment of C.P., Indiana County, December T., 1929, No. 41, in the case of Dixonville Deposit Bank v. Marshall Federal Bakery by George Fitzhonts.
Before TREXLER, P.J., KELLER, LINN, GAWTHROP, CUNNINGHAM, BALDRIGE and DREW, JJ. Affirmed.
Petition to open judgment. Before LANGHAM, P.J.
The facts are stated in the opinion of the Superior Court.
The court dismissed the petition. Defendant appealed.
Error assigned, among others, was the decree of the court.
B.A. Sciotto, and with him Geo. Jerko, for appellant.
J. Wayne Tomb, for appellee.
Argued April 15, 1931.
This was a petition to open a judgment which was confessed in the name of the Marshall Federal Bakery, by George Fitzhonts. He, with J.E. Marshall, conducted the business under the above name.
Mrs. Mabel Marshall, the wife of J.E. Marshall, furnished the capital, or at least secured it, for the firm. She petitions to open the judgment, alleging that she owned the business and that George Fitzhonts had no authority to confess the judgment and was not a partner in the enterprise. Depositions were taken and the court came to the conclusion that she was not the owner of the business, but was merely a creditor. The conclusion reached by the court was justified by the testimony submitted. Mrs. Marshall, being a mere creditor of the concern, had not, under the facts as presented to the court, any standing to ask that the judgment be opened. "It is only a non-assenting partner that can call in question the validity of a judgment confessed by his copartner for a firm debt": Erwin's Appeal, 39 Pa. 535; Hamilton's Appeal, 103 Pa. 368; Evans v. Watts, 192 Pa. 112; Grier Co. v. Hood, 25 Pa. 430.
The order of the court is affirmed.