159 A. 553 | Pa. | 1932
Argued January 6, 1932. Plaintiff and the other individual defendants were jointly interested in the corporation defendant: $20,000 being needed to purchase a property for corporate purposes, plaintiff agreed to and did lend it, upon the faith of the execution and delivery to him of the following judgment note: *348
Phila., April 16, 1929.
One day after date I, we or either promise to pay to Carl F. Koenig the sum of Twenty Thousand Dollars, without defalcation, value received, with interest, payable every three months at 6% per annum: Provided, however, and it is hereby agreed, that if at any time default shall be made in payment of interest as aforesaid when the same falls due, then and in such case the whole principal debt aforesaid shall, at the option of the said payee, become due and payable immediately, and payment of said principal and interest may be enforced and recovered at once. And further, we do hereby authorize and empower any attorney of any court of record of Pennsylvania, or elsewhere, to appear for and to enter judgment against us for the above sum, with or without declaration, with costs of suit, release of errors, without stay of execution and with ten per cent added for collection fees; and we also waive the right of inquisition on any real estate that may be levied upon to collect this note, and do hereby voluntarily condemn the same, and authorize the prothonotary to enter upon the fi. fa. our said voluntary condemnation, and we further agree that said estate may be sold on a fi. fa., and we hereby waive and release all relief from any and all appraisement, stay or exemption laws of any state, now in force, or hereafter to be passed. Witness our hands and seals the day and date first above written." The note was duly signed and sealed by the corporation, by five other individuals, and by plaintiff himself, who became, therefore, one of its payors as well as its payee. Out of this latter fact the present controversy arises.
After the note fell due, plaintiff demanded payment of it, and, this being refused, he filed it of record, judgment was entered on it against all the makers, including himself, and he issued attachments execution thereon. The other defendants thereupon obtained rules to strike off the judgment and to quash the attachments. Being of opinion that, under the circumstances stated, plaintiff's *349 only remedy was in equity, in which forum, being already a plaintiff, he need not be made a defendant also, the court below made the rules absolute, and from those orders he now appeals. They must be reversed.
Two things plainly appear: (1) The obligation assumed by the makers of the note is not joint only, but is joint or several — "I, we or either of us promise to pay"; and (2) The objection sustained by the court below relates to procedure only, and does not affect the substantive rights and liabilities of either party in the slightest degree. We have repeatedly said that the rule that process to enforce a joint judgment must be joint is of a highly technical nature (Mortland v. Hines,
In the early days of the Commonwealth, before we had a court of equity, a judgment at law was the only *350 recourse in a case of this kind, and the defendants who were jointly liable with plaintiff, were able, by an appropriate rule in that action, to protect themselves against an excess recovery. The right to so proceed still exists where, as here, there is no different procedure required by statute. See the authorities cited in "Equity in Pennsylvania," by Anthony Laussatt, Jr., 1 Penna. Bar Assn. Reports, page 221; "The Courts of Pennsylvania in the 16th Century," by Lawrence Lewis, Jr., Ibid., page 353; and "Pennsylvania Jurisprudence," by HON. JOHN W. SIMONTON, Ibid., page 3. It follows that should plaintiff attempt to collect from appellees, or any of them, more than their fair share of liability, those injuriously affected could prevent him from so doing by a suitable rule relating to the execution, whether plaintiff is or is not a defendant. Doubtless, also, under the chancery powers now vested in the courts, appellees could obtain needed relief in equity, if they preferred that method of procedure. This record fails to disclose, however, that the property rights of any of them are injuriously affected or threatened, and hence the only effect of now forcing plaintiff to proceed by a bill in equity to obtain that which appellees owe him, would be to delay him unnecessarily, despite the constitutional mandate to the courts to administer justice "without sale, denial or delay."
If the court below had refused to strike off the judgment, an appeal from that order would have been quashed, because appellees were not harmed by it (Hunter v. Pope,
The conclusion that the court below erred, is reached from another cognate standpoint. The objection to being sued jointly with one who is also the plaintiff, is not founded on any statute or public policy, but is a purely personal matter which may be waived, and if the defendants who are thus sued do not object prior to judgment, they will not be permitted to do so thereafter. Probably this would not be disputed if, after a trial, a verdict was rendered and judgment entered thereon. It is not the less so in the case of a confessed judgment, which has all the incidents of a judgment entered on a verdict: Hopkins v. West,
The cases cited by the court below and by appellees do not conflict with the conclusions stated, as a reference to them will clearly show. In Williams v. M'Fall, 2 S. R. 280, we held that "the judgment confessed [in a suit upon a purely joint note] will stand against him who confessed it." The same conclusion is reached in Beltzhoover v. Com., 1 Watts 126, and in Shively v. United States, 5 Watts 332. In M'Fadden v. Hunt, 5 W. S. 468, our review was of the proceedings at a trial, in which there was no confessed judgment. The same is true of Hall v. Logan,
Both of the orders of the court below are reversed, the judgment and attachments execution are reinstated, and a procedendo is awarded.