Opinion
No. 35603
Decided April 22, 1959.
Judgments — Vacation or modification after term — Mode of proceeding — Judgment on cognovit note — Claimed to be for more than amount due — Issues raised by answer — Credibility of witnesses and weight of evidence — Issues to be determined by trier of facts.
APPEAL from the Court of Appeals for Madison County.
The statement of facts recited by defendant herein is conceded by counsel for plaintiffs to be correct so far as pertinent herein. That statement reveals the following:
In December 1954, plaintiffs (or at least one of them) loaned defendant the sum of $275, which amount has not been repaid. On March 26, 1956, defendant signed a promissory note containing a warrant to confess judgment with at least the date and amount left blank. On January 4, 1957, over nine months after the note was signed, the attorney for plaintiffs inserted therein the date of March 26, 1956, and the amount of $1,009. On the same day, a petition was filed in the Court of Common Pleas of Madison County and, without service of summons, judgment was rendered thereon, by virtue of the warrant to confess, in the amount of $1,009, with interest from March 26, 1956.
On May 14, 1957, defendant filed a petition to vacate the judgment after term, alleging therein that the judgment is for more than was due the plaintiffs, that the note was signed in blank, and that one of the payees was authorized to fill in the blank in the amount of $275.
With his petition to vacate, the defendant tendered an answer alleging therein that on or about December 10, 1954, he borrowed $275 from one of the plaintiffs, and that on or about such date he signed a blank note which he gave to that plaintiff, authorizing her to fill in her name as payee and to fill in the amount of $275. Defendant then confessed judgment in the in the amount of $275, with interest from December 10, 1954, and prays that the judgment theretofore rendered be set aside and judgment entered in the amount confessed.
The plaintiffs filed no answer to the petition to vacate but the plaintiff wife was present for and testified at the hearing on the petition to vacate.
Following the hearing, the trial judge wrote an opinion in which he said, in part:
"It is within the province of the court to weigh the credibility of the witnesses and we find the plaintiff's testimony credible and that of the defendant otherwise upon the entire record. That less than a preponderance of evidence was adduced by defendant that the judgment was taken for an amount in excess of the amount due on the date of the judgment entry."
An entry in conformity to the opinion and dismissing the petition to vacate was journalized.
The Court of Appeals, by a divided vote, affirmed the judgment of the Court of Common Pleas.
The cause is before this court upon the allowance of defendant's motion to certify the record.
Messrs. Jackman, Nichols Grubbs, for appellees.
Mr. Reed M. Winegardner, for appellant.
There is positive testimony by the defendant that the only amount he ever owed the plaintiff wife was $275, and that he had never authorized her to insert in the note an amount in excess of that. Plaintiff wife, on the other hand, testified that, in addition to the $275, she and her husband had loaned the defendant other amounts on other occasions. There is a definite conflict in the testimony as to whether the note was blank as to the name of payee at the time it was signed and as to whether (if it was blank when signed) there was any authorization given by the defendant to fill in any name other than that of the one plaintiff.
The credibility of the various witnesses and the weight to be given their testimony are matters to be considered by the trier of the facts upon trial of the issues raised by the answer. It is not the function of the trial court to make those determinations upon a hearing of the petition to vacate.
The judgment is reversed on the authority of Livingstone v. Rebman, ante, 109.
In addition to the determination of the conflict concerning the amount and the authority to complete the note, there is an additional question raised herein as to whether the note was completed within a reasonable time after being signed by the person sought to be charged thereon, a determination which should be made by a jury under proper instructions from the court or by the court in the event a jury is waived.
Judgment reversed.
WEYGANDT, C.J., ZIMMERMAN, BELL and HERBERT, JJ., concur.
TAFT, J., concurs in the judgment on the ground that, as a matter of law, the blanks were not "filled up * * * within a reasonable time" as required by Section 1301.16, Revised Code.
MATTHIAS, J., dissents.