50 Pa. Super. 124 | Pa. Super. Ct. | 1912
This appeal grew out of the plaintiff’s application, presented on July 19, 1909, to have judgment entered against the defendants upon a promissory note under seal with confession of judgment dated December 11,1888, and payable one year after date. The rule of the court below relating to the matter provides as follows: “If a warrant of attorney, or a written power to confess judgment, be above ten and under twenty years old, the court in term time, or a judge in vacation, must be moved for leave to enter judgment, which motion must be founded upon an affidavit of the due execution of the warrant or written power, and that the money is unpaid, and the parties living. But if the warrant or written power be above twenty years old, there must be a rule to show cause, and that must be served upon the party, if he is to be found within the state.” The validity of such a rule of court has been recognized throughout the com
The second assignment of error relates to the refusal of the plaintiff’s petition, which was presented after the foregoing action of the court, to direct entry of judgment under the warrant contained in the note, the plaintiff’s contention being that he had done all he could do in order to comply with the court rule. This contention is not sustained. It was incumbent on the plaintiff to have the rule to show cause served on the defendants if they were to be found within the state. Obviously, the so-called return .of the sheriff, does not show that they could not be found within the state, therefore, the case rests on allegations of the original petition that “the deponent has no knowledge now that they are residents of Pennsylvania and thinks they are not,” and that “the parties are living in the west as deponent is informed.” The petition is silent as to the sources of the plaintiff’s in
The assignments of error are overruled and the order is affirmed.