74 Pa. Super. 175 | Pa. Super. Ct. | 1920
Opinion by
On May 3, 19Í9, judgment was entered in an amicable action of ejectment, by warrant of attorney contained in a lease, against Abraham Niederman in favor of Felix Isman, agent, to the use of Isaac Malis. The lease attached to the amicable action and confession of judgment was dated January 15, 1907, and was signed by Felix
The averment of default attached to the amicable action, which was sworn to by Isaac Malis, set forth that the said lease had been executed by Felix Isman, as agent for Kiwa Schwartz, the owner of the leased property, and had been assigned by her to deponent at the time he acquired title to the property on June 3, 1910; that in accordance with the terms of the lease, written notice to vacate the premises at the expiration of the current
The only reason advanced by the defendant for striking off the confession of judgment was that it was entered in favor of Felix Isman, agent, to the use of Isaac Malis.
We are not convinced that this was erroneous. The lease was taken in the name of Felix Isman, agent. The owner of the premises was not named in the body of the lease, but the acceptance or approval therein referred to was signed by Kiwa Schwartz. Under this state of facts, the judgment could not have been entered in favor of Kiwa Schwartz: Patterson v. Pyle, 1 Monaghan 351; it would have to be entered in the name of Felix Isman, agent, or Felix Isman, agent for Kiwa Schwartz: Phila. Fire Extinguisher Co. v. Brainard, 2 W. N. C. 473; and a judgment entered in favor of Felix Isman, agent, could not have been contested by the defendant: Bedford v. Kelly, 61 Pa. 491; Holt v. Martin, 51 Pa. 499; and it was not necessary to set out the interest of the use-plaintiff, except for his special protection: Peterson v. Lothrop, 34 Pa. 223, p. 226; C. H. Hardy Auto Co. v. Posey, 50 Pa. Superior Ct. 399.
When the property was sold by Kiwa Schwartz, to Isaac Malis, and the lease assigned to him, he stood in her shoes, and the defendant having attorned to Malis and paid rent to him for nearly nine years, could not deny the tenancy nor raise any question as to his right to be named as use-plaintiff in the action: Rhoads v. Speers, 15 Dist. Repr. 335. Even though the judgment ought to have been entered in the name of Felix Isman,
In any event, under the terms of this lease the appellant is not in a position to raise any question as to errors or defects in entering the amicable action or judgment. By the express terms of the lease, the lessee released all such errors and defects, as well as his right to take an appeal and if the present appeal rested only on the motion to strike off the judgment, we should be bound to grant the motion of the appellee and quash the appeal, for the defendant has waived his right to a review of any action of the court below which is based upon the written lease: Groll v. Gegenheimer, 147 Pa. 162; Seagrave v. Lacy, 28 Pa. Superior Ct. 586.
The first assignment of error, which complains of the action of the court in dismissing the rule to strike off the judgment, is overruled.
The second assignment of error, which is to the dismissal of the rule to open the judgment, stands on a somewhat different footing. The allegations of the petition in this respect are that after the receipt of the notice to vacate at the expiration of the term, the defendant saw the use-plaintiff’s agent and made an arrangement with him which was afterwards confirmed by the use-plaintiff himself, under which the defendant was to retain the premises for a further period of one year or until April 30, 1920, at an increased rental. This was
The Act of May 20, 1891, P. L. 101, giving the right of appeal from an order refusing to open a judgment did not take away from the court of common pleas the discretion which that court had so long exercised in the matter of opening judgments. The proceeding to open has only been turned into an equitable one to be decided in accordance with equity principles: Com. v. Mellet, 196 Pa. 243. The application to open, vacate, or strike off the judgment is an equitable proceeding addressed to the sound discretion of the court and the appellate court will only determine whether the discretion has been properly
Tbe assignments of error are overruled, and the order of tbe court is affirmed at tbe costs of tbe appellant.