73 Pa. Super. 468 | Pa. Super. Ct. | 1920
Opinion by
This appeal, with another between the same parties were argued together. Each one rests on a separate order made by the court below in disposing of certain rules that had been obtained on various phases of what may be termed a single transaction. We shall state the facts as briefly as possible in this opinion, which will indicate the reasons for our disposition of each appeal.
One Brubaker, executed and delivered to Shaub, appellee, a promissory note under seal, obliging himself to pay to Shaub the sum of $400. The maker in and by the same instrument, confessed judgment in the sum named, with interest, etc. This note was dated August 23, 1917, payable sixty days after date, and is the only note or single bill executed by anybody in the course of the entire transaction. On the same day and on the back of the same paper, Shaub, the payee in the note, executed an obligation to the Agricultural Trust Company, the appellant. By the terms of this instrument Shaub assigned the note to the trust company and guaranteed the payment of the same at maturity, and then authorized any
At No. 276 of August Term, 1917, of that court, appears the evidence of what the prothonotary actually did, and we quote the docket entry:
“Agricultural Trust Company’s use vs. C. H. Brubaker J. Edward Shaub.
August Term 1917
No. 276.
“Debt $400. Judgment against defendant in the sum of $400 on judgment single bill under seal dated August 28,1917, payable 60 days after date with six per cent, interest value received.
“Entered and filed October 22, 1917.
“A. E. Leaman, Prothonotary.”
This was the action of the prothonotary, and upon the determination of the legal effect of that action must depend the disposition of both appeals. We might note here we have no question concerning the effect of the prothonotary’s action on Brubaker, the maker of the note; he is not a party to either appeal. It appears he became a bankrupt and was in due course discharged, and apparently has no further interest in the controversy. Our
In March, 1918, Shaub presented a petition for a rule to show cause why the judgment should not be opened as to hiin, and a rule was granted. This rule was discharged in an opinion filed on July 6, 1918. The opinion is not before us as that order was not appealed from. On the date last mentioned the defendant presented another petition and obtained a rule to show cause why the judgment should not be stricken off. An answer was filed and that rule was argued and disposed of at the same time as the other orders to which we shall not advert. On the 30th of November, 1918, the plaintiff trust company filed its petition, asking for a rule to show cause why the record of the judgment referred to should not be amended, by splitting into two parts what had been done by the prothonotary; so that at No. 276 there should be a judgment against Brubaker alone in execution of the warrant he signed, and at a new number, 276%, a separate judgment against Shaub in execution of the warrant he had signed. On the same day the plaintiff appellant had the prothonotary enter an entirely separate judgment against Shaub alone, to No. 59 of November Term, 1918, on the theory that the warrant of attorney signed by him had never been executed. The court below refused the prayer of the petition to amend the record, discharged the rule to amend the docket entries and strike off the judgment as to Shaub, and at the same time made absolute a rule that had been obtained by Shaub to strike off the judgment at No. 59, November Term, 1918, on the ground that the warrant which was the foundation of the action by the prothonotary had been exhausted by what had been previously done. An appeal was taken from each of these orders.
There is no necessity for a discussion of the well established principle that but one judgment can be entered
In such cases the prothonotary does not act as the officer of the court; his hand is not that of the court entering upon the record a judgment duly pronounced by the law. He derives his authority solely from the Act of 1806. To exercise the power conferred by that statute, he must obey its mandatory directions else he remains but a mere volunteer and his action is without legal effect. Now the statute requires that he enter “on his docket the date and tenor of the instrument of writing on which the judgment may be founded.” Manifestly the reason for this requirement is that the foundation for the entire proceeding is in the written obligation of the party against whom the judgment is to be entered, and a proper reference to it is necessary to make the record self-sustaining. So we said in Eddy v. Smiley, 26 Pa. Superior Ct. 318: “A judgment by confession can only be sustained by' a warrant authorizing it at the time and in the manner and form in which it was entered: Lytle v. Colts, 27 Pa. 193; Summy v. Hiestand, 65 Pa. 300; Weaver v. McDevitt, 21 Pa. Superior Ct. 597.”
Now let us examine the record evidence of what was done by the prothonotary, and see if it discloses the substance of a judgment against Shaub in execution of the warrant signed by him. The plaintiff named in the caption is “Trust Company’s use” and therefore a use as distinguished from a legal plaintiff. This would eon-
The undertaking of Shaub with the bank was undeniably collateral in its nature and effect. Had the principal debtor paid at maturity, as be bad bound himself to do, any judgment properly entered on Shaub’s warrant would have been satisfied on payment of costs. Nowhere on the record did the protbonotary “enter on bis docket the tenor and effect of the instrument” that would support a judgment against Shaub until be properly executed that warrant at No. 59, November Term, 1918.
Under the facts as we have stated them, and for the reasons' pointed out, our conclusion is the protbonotary entered no judgment against Shaub by the action taken at No. 276, August Term, 1917. What be there did was
The order of the court below making absolute the rule to strike off the judgment at No. 59, November Term, 1918, in the court below, is reversed and set aside and the record is remitted to that court with directions to discharge the said rule at the costs of the petitioner.