226 Pa. 384 | Pa. | 1910
Opinion by
On January 20, 1908, Joseph Exler, the appellant, entered a judgment in the court below against Theodore H. Geiselhart for 13,219.30 upon a warrant of attorney contained in a judgment note dated September 3, 1907, and payable three months after date. On March 5, 1908, involuntary proceedings in bankruptcy were instituted against Geiselhart, and on April 25, 1908, upon his having been adjudged a bankrupt, Justus Mullert was appointed trustee of his estate. On June 13, 1908, the trustee presented his petition to the court below, setting forth that at the time the judgment was entered Geiselhart was insolvent, that, having been entered within four months of the institution of the bankruptcy proceedings, its existence and enforcement would work a preference in violation of the bankruptcy act, and an order was asked for,, directing that it be stricken from the record so far as it affected the bankrupt estate of Geiselhart and the lot of land described in the petition. On July 25, 1908, the prayer of the petition
In a proceeding like this, to set aside an alleged unlawful preference, state and federal courts have concurrent jurisdiction under the bankruptcy act, but when relief is sought in a state court and its jurisdiction is exercised,' the rules of practice as established in the courts of that state prevail: Collier on Bankruptcy, 7th ed., 406, 674; Bank of Commerce v. Elliott, 109 Wis. 648.
The judgment was regular on its face and the appellant denied the right of the trustee to have it stricken off for any reason dehors the record. The fact upon which the court was asked to so summarily dispose of it- — -the insolvency of Geiselhart on January 20, 1908 — was a disputed one, the supplemental answer averring unqualifiedly that on that date he was not insolvent within the meaning of the bankruptcy act. Under the unbroken line of our cases the court could not have stricken the judgment from the record. It is only when the fact upon which the court is asked to strike off a judgment, regular on its face, is admitted or not questioned that it may be stricken off. A judgment entered upon an admittedly forged warrant of attorney has no right to be on the record, and, upon admission of the forgery, the court having control of the record has power to strike it off. In such a case there is nothing to send to a jury: Humphreys v. Rawn, 8 Watts, 78; Bryn Mawr National Bank v. James, 152 Pa. 364; Long v. Lemoyne Borough, 222 Pa. 311.
But it is contended that the rule as to striking off judgments ought not to apply in the present case, because all the court was asked to do, and all that it did under the amended petition, was to declare the lien of the judgment void and that the property mentioned in the petition was not bound by it. We confess our inability to recognize this distinction. In declar
The order of the court below is reversed and the rule to show cause discharged.