5 Watts 289 | Pa. | 1836
The opinion of the Court was delivered by
Most clearly there was no authority to enter five judgments for the several instalments mentioned in said bond, whatever may be the meaning or effect of the words “ after filing one or more declarations to confess judgment or judgments” against me for the amount of the said bond. This cannot be tortured to mean that the conditions are what the judgments are to designate and for which judgments are to be entered. The bond is conditioned to saw a certain number of logs to be furnished by Bush at each period. Judgment might have been entered for the amount of 1800 dollars, that is the bonds and to that the warrant of attorney referred. But then no execution could issue until on a scire facias and trial a jury had found that Bush furnished the logs in proper time, and that Adams did not saw them; and further found what was the amount of damage to Bush on that account.
There is no such bond as is recited in the several declarations and no such warrant of attorney as is recited in the confession of judgment.
I admit that a judgment confessed by an attorney purports to be the act and decision of the court, and this though the court never heard of it. If it is suffered to remain unquestioned and execution issues, and defendant’s land is sold, the purchaser will, by an act of assembly, hold the land though judgment may be reversed on error. It is important then, for a defendant to make objection as soon as he knows of the judgments, and the courts in this state have always inquired into the regularity and validity of such judgment. Sometimes the judgment is opened, sometimes an issue is directed, and if necessary an amendment in form may be made where there is any thing by which to amend. But when no bond can be produced and no obligation, or when no warrant of attorney exists or none authorising such judgment, the court cannot amend; and a judgment entered without authority must be void and ought to be vacated.
In this case the bond express^ states that the lien of this bond is to be only on the mill and mill privilege of said Adams. Now, on an execution issued for the instalment called 600 dollars, and issued on the praecipe of Bush himself, there was a levy on a tract .of land sold by Adams, after 13th March 1833, and before issuing said execution. This may have been mistake, or it may have been an attempt to do what was neither legal nor fair. The court had no right to order a judgment, if they did consolidate, to have a retrospective effect; they had no right to order a general judgment to bind all lands, when the agreement of the parties was, that it should be a lien only on specific property.
Another matter may be mentioned. Where several suits are brought by the same plaintiff on different bonds or notes, courts never have consolidated them at the instance of the plaintiff; consolidation is by consent or at the instance of the defendant; and then not of course; for it will not be directed if any injury is thereby done to the plaintiff. 1 Tidd (old edition) 441. 556. Consolidation of void suits is unknown in the law.
The decree of the court in ordering these five judgments to be consolidated, and ordering one judgment to be entered on the whole penalty of the bond, as of 13th March 1833, is reversed; and -the judgment so ordered as well as the five separate judgments before mentioned, are declared null and void..
Judgment reversed.
