The act complained of in this case was done in the exercise of an unquestionable equity power of the court below.
In November, 1894, judgment in default of sufficient affidavit of defense was entered against the defendant. On his application, a week thereafter, a rule to amend the assessment of damages was granted. By agreement of counsel for both parties that rule was “ treated as a rule to open the judgment ” theretofore entered; and on December 22, 1894, the same was made absolute. The action of the court in thus opening the judgment and letting the defendant into a defense is assigned as error.
The proceeding under the rule, as modified by agreement,, was virtually an appeal to the equity power of the court which, in all judgments by default, may be invoked by the defendant. In such applications, “ it is proper for the court to weigh the evidence and decide according to the preponderance thereof, and this court will not reverse for the exercise of a sound discretion:” Wernet’s Appeal, 91 Pa. 319. That appears to have-been done in this case. The record fails to show that the discretion, with which the court is invested in all such cases, was not properly exercised. There is nothing in either of the assignments of error that requires further notice. They are both dismissed.
Decree affirmed and appeal dismissed with costs to be paid by plaintiff.