202 Pa. 74 | Pa. | 1902
Opinion by
Fisler mortgaged a tract of land to Leech, the appellant, and afterwards conveyed the land to Reach, the appellee, “ under and subject to ” the payment of the mortgage debt. Judgment was obtained on the mortgage, and the iand was sold by the sheriff for a sum insufficient to pay the mortgage debt. This action was brought in the name of Fisler to the use of Leech to recover the deficiency from the grantee, Reach. It was brought with the knowledge and consent of Fisler, who after-wards parted with whatever interest he had in the action. The plaintiff’s attorney was ruled to file a warrant of attorney, but was unable to obtain one as Fisler had sold his interest. He filed letters and affidavits which showed that he had been authorized by Fisler to bring the action. The court held that the papers filed were insufficient and ordered a stay of proceedings. The questions raised by the appeal are: first, whether the use plaintiff could use the name of the legal plaintiff without his consent; second, if a warrant of attorney from the legal plaintiff were necessary to a continuance of the action, were the papers filed sufficient to constitute such a warrant ?
The action was to enforce a contract between the legal plain
The letters and affidavits filed do not constitute a sufficient warrant of attorney. They show only that the action was commenced with the consent of the legal plaintiff, and that when called on to give a warrant of attorney he was unable to do so for the reason that he had assigned his claim to another, who alone had the right to continue the action. The Act of April 14, 1884, P. L. 354, requires every attorney, if called on to do so, to “ file his warrant of attorney in the office of the prothonotary or clerk of the court in which such action shall be depending.” This statutory requirement is not met by proof that the action was originally brought with the consent of the plaintiff. The act requires a specific form of proof to be filed in order that the right may be clearly and indisputably shown, and this requirement cannot be dispensed with.
The judgment is affirmed.