Hamborsky v. Magyar Presbyterian Church

78 Pa. Super. 519 | Pa. Super. Ct. | 1922

Opinion by

Linn, J.,

This is an appeal from the refusal to strike off a judgment. It was entered by confession in an informal instrument of which a copy appears in the reporter’s statement of the case. On defendant’s petition to strike off the judgment, the court granted a rule to show cause. An answer was filed by the plaintiff. The case was heard on petition and answer. Instead of discharging the rule or making it absolute, the learned court converted it into a motion to open the judgment as appears by the following order made: “The rule to show cause is accordingly modified to stand as a rule to open the judgment and is thereupon made absolute. An issue to determine its validity is awarded in which the note shall stand as plaintiff’s declaration and the petition to strike off as defendant’s plea.”

Neither plaintiff nor defendant assented to the change in procedure made by the court, so that accordingly we have two appeals, one by the defendant to No. 38, March Term, 1922, complaining that its rule was not made absolute, and the other by plaintiff to No. 24, March Term, 1922, complaining that the rule was not discharged. The two appeals were argued together and shall be determined in one opinion.

A rule to strike off a judgment is a common law proceeding; the procedure to open is equitable. The function of each is clearly stated in many decisions, though the two are not only frequently confused in practice but occasionally one is permitted to perform the function of the other. This usually occurs because no point is made of the matter, both parties apparently preferring decision of essentials on the record as presented (compare Stevenson v. Virtue, 13 Pa. Superior Ct. 103, 108, with Spiese v. Shee, 250 Pa. 399), Where, however, as the present appeals indicate, parties insist upon disposition of the motion to strike off in strict accordance with its prayer, we must so consider it and inspect the record to ascertain whether any irregularity or insufficiency appears thereon.

On March 10, 1921, the instrument quoted in the reporter’s statement was filed with the prothonotary of the court below, and pursuant thereto, judgment was entered against the Magyar Presbyterian Church, appellant. On March 24, 1921, on defendant’s petition, averring inter alia that inspection showed that the instrument was not executed by the proper executive officers, or under the corporate seal, or with authority of the corporation, the rule to strike off was granted. In its opinion making the order complained of, the learned court below said that averments in the petition and answer made the validity of the judgment depend upon the authority of the person who executed the instrument on which judgment was entered, and that accordingly an issue triable by jury was presented, requiring the order made and appealed from.

If the judgment were regular on its face, it would of course be immaterial in this proceeding whether or not an issue of fact was made in the petition and answer, for matters outside the record cannot be made the basis of striking off a judgment against objection: Spiese v. Shee, supra. Concerning the instrument upon which the judgment was based, the learned court however said: “Judgment d. s. b. was entered ostensibly by confession in a promissory note of a church congregation by hand of one describing himself as vice-president of its board of trustees. It may at least be doubted whether there is any presumption of authority in such official to so bind either the congregation or its property. Hence, if counsel had contented himself with the prima facies of the case, as so presented of record, he might have been entitled to the specific relief asked for.”

We agree, that not only is there no presumption of authority, but that an inspection of the instrument shows such absence of authority as makes the judgment invalid and requires that the rule be made absolute. The instrument is obviously incomplete; it purports to be executed under “the hand and seal of - the Magyar Presbyterian Church, Scranton, Pa.,” but no seal is affixed; the signature, “Gregory Sandor, Vice President, Board of Trustees,” adds nothing by way of prima facie proof of authority; the instrument not only contains a confession of judgment but releases errors, waives stay of execution and inquisition, etc., as well as exemption of personal property from levy and sale on execution; it is obviously not an ordinary but an extraordinary transaction of a character not usually performed by any officer. While it has been held that a contract executed in the name of a corporation, signed by its president and secretary, with the corporate seal affixed thereto, is presumed to be the act of the corporation: Turnpike Company v. Pass. Ry. Co., 194 Pa. 144, 148, we have been referred to no authority and have found none permitting us to hold that an informally executed paper, such as is before us, can sustain the judgment entered by the prothonotary pursuant thereto: see Millward-Cliff Cracker Co.’s Est., 161 Pa. 157; Stokes v. New Jersey Pottery Co., 48 New Jersey Law 237.

The order is reversed, the record remitted with instructions to reinstate the rule to strike off the judgment and to make the rule absolute.