Opinion bt
Me. Justice Simpson,In the court below judgment was entered, as by confession, in the name of “Franklin F. Massey, now to the use of Myerstown Trust Company,” upon a judgment note payable on demand, given and executed by the said Franklin F. Massey and the four other defendants, to the order of the said Franklin F. Massey, and by him some days thereafter formally assigned to the said Myerstown Trust Company, whereupon J. O. Geisler and Daniel W. Bohn (two of the defendants and appellees herein) obtained a rule to show cause why the judgment should not- be opened and they let in to a defense.
After making the usual formal averments, they alleged in their petition for the rule that they had been accommodation makers or endorsers on certain notes discounted for the use of the said Franklin F. Massey; that he informed them he was required to take up those notes and asked them to give him, for this purpose, a *241note in blank, payable to himself, which he would fill up in an amount which “should not exceed......the sum of $750”; that he took said note then “containing nothing but the signatures of the defendants and delivered the same in an incomplete state to an officer of the Myerstown Trust Company, [who] completed said note by writing therein the name of Dr. Franklin F. Massey as payee and the amount for which said note was drawn, to wit, $9,960, both in words and figures, and inserting therein a provision that said note was payable on demand,” of which facts appellees had no notice until judgment was entered of record and execution issued thereon.
The answer of use-plaintiff does not dispute nor even call for proof regarding the essential averments of the petition, except the one which says the note was not filled up until after it was delivered. This is denied and the contrary thereof averred, and thereon use-plaintiff bases its principal if not only defense, so far as the answer is concerned, by claiming the benefit of section 14 of the Negotiable Instruments Act of May 16, 1901, P. L. 194. It is admitted there was sufficient evidence to submit this disputed point to a jury, and hence it is not necessary to consider its materialty, though the form of the action (McKinney v. Mehaffey, 7 W. & S. 276; Guarantee T. & S. Dep. Company v. Powell, 150 Pa. 18; Commonwealth v. Phila., 193 Pa. 239), and the fact that the note was overdue when taken by use-plaintiff, (Andress’s App., 99 Pa. 421; Cook v. Carpenter, 212 Pa. 165; Dominion Trust Company v. Hildner, 243 Pa. 254) leave this matter at least doubtful.
It is alleged, however, that the depositions show appellees executed the note for the purpose for which it was delivered to use-plaintiff, and hence, it is argued, the rule to open the judgment should have been discharged. The fact thus averred might be admitted, yet the conclusion sought to be drawn therefrom would not follow, even though we also hold inapplicable the rule of *242practice that in proceedings of this kind no question should be considered unless raised by the petition and answer: Fisher v. King, 153 Pa. 3; Carr v. Ætna Accident & Liability Co., 263 Pa. 87; State Camp of Penna. of the Patriotic Order Sons of America v. Kelley et al., 267 Pa. 49. We are not now called upon to decide whether binding instructions will have to be given on final hearing, if at that time nothing further appears than is shown in these depositions; but whether the court below abused its discretion in opening the judgment. Of course, if, on the hearing of such rules, defendants do not produce evidence to sustain the issues clearly raised by the pleadings, or if they do and it is met by writings which are determinative of the controversy, or by undisputed oral evidence given by witnesses whose testimony is clear and of whose disinterestedness and fairness there is no reason to doubt, we may well be asked to reverse for the opening of a judgment; but when, on the pleadings and proofs, doubts exist as to what is the real justice and equity of the case, the court below ordinarily will not be reversed for opening or refusing to open a judgment, for its order, especially when interlocutory as the present one is, is within its sound discretion.
In the present case the defense is complete as against Massey and use-plaintiff alike, unless the note was filled up and used for the purpose for which it was given, of which allegation there was no averment in the answer, and the burden of proof thereof is on appellants; admittedly there is ample evidence to go to the jury on the only issue specifically raised by the answer; the evidence was oral, and confessedly only part of that which can be produced on the trial; and the witness whose testimony is relied upon by appellants, as showing the note was so filled up and used, does not so state, it maybe he was endeavoring thereby to excuse his alleged wrongdoing to one or both of the parties, and was, moreover, in a military camp when his deposition was taken and could *243not testify with certainty, because he did not then have access to his books and papers. His uncorroborated testimony on this vital point goes no further than that his “understanding” with use-plaintiff was that the note was “to be for the sum total of all other notes in the trust company”; that he “did not know the amount” due by him, or “for what amount this note should be drawn,” or, until long afterwards, for what sum the treasurer of the trust company filled it up; that he “felt that the amount was incorrect,” but was not sure because he did not have access to his books and papers; that “nothing was said [to defendants] one way or the other” regarding the amount to be placed in the note, but it was not to be so filled up as “to increase the liability of any one”; and that defendants at that time were “on some notes,” which did not however “aggregate” $9,960, the amount of the note in suit. In an endeavor to cover this figure plaintiff’s treasurer testified that Geisler was liable to the extent of $600 and Bohn to the extent of $6,050, on the notes taken up by the note in suit, and added that possibly, though he could not say certainly, they may have been liable, as accommodation endorsers, on other of the notes included in the $9,960.
It follows from the foregoing that the conclusions reached by us is in accord with and not in disregard of the rules of equity pleading and practice; and that the case is within the class over which the court below was entitled to exercise its discretion in awarding a jury trial. No authority has been brought to our attention, and we have found none, wherein a contrary conclusion has been reached, under these or similar circumstances ; whereas in principle it is in accord with our recent decision in the Cleveland Worsted Mills Company v. Myers-Jolesch Company, 266 Pa. 309. Moreover, to now decide against defendants is to forever exclude them from all relief, however greatly they may have been wronged; while, on the other hand, as the liens of *244both the judgment and the execution were allowed to remain for the protection of use-plaintiff, opening the judgment harms neither party finally
The assignments of error are overruled and the order appealed from is affirmed.