154 A. 17 | Pa. | 1931
These are appeals from the decrees of the Court of Common Pleas of Delaware County striking off six judgments indexed as Nos. 1570, 1571, 1572, 1573, 1574, 1575, September Term, 1929, Court of Common Pleas of Delaware County. The judgments were entered on bonds each containing a warrant of attorney to confess judgment. The appellants are the obligees in these bonds. All the bonds are in the same form but are for different penal sums. These bonds purported to indemnify the plaintiffs for loss or damage arising from the happening of certain contingencies, to wit: (1) Failure to erect and fully complete certain buildings mentioned in the *61 bonds free of mechanics' claims. (2) Failure to pay off, discharge and have satisfied of record all liens or claims for work and labor. (3) Failure to repay obligee money expended by it (a) in payment of all liens filed, (b) in payment of sums of money paid to complete buildings, (c) in payment of counsel fees and miscellaneous expenses. The bonds provided further that "in the event of a proceeding upon, or entry of judgment on this bond for the recovery of any moneys expended for the completion of said buildings, or payment of liens thereon, or for any costs, loss or expense incurred by said obligee as above provided, an account of such expenditures verified by the affidavits of an officer of said Lansdowne Trust Company and Drexel Hill Title Trust Company, shall be prima facie evidence of the amount so expended and of the necessity for such expenditure, and the burden of proving the contrary thereof shall be upon the obligor." In the petition to strike off the judgment it is alleged, inter alia, that "contrary to and in violation of the terms of said confession of judgment, plaintiffs have caused the prothonotary to enter judgment thereon without filing or lodging with the prothonotary an account of said expenditures verified by affidavit and notwithstanding the fact that the prothonotary could not from the face of the bond itself ascertain what amount judgment should be entered for, for the reason that the said bond was not an obligation for the unconditional payment of a definite sum at any definite time."
The statutory authority invoked for the entry of judgment in these cases must be found, if anywhere, in the Act of February 24, 1806, section 28, 4 Sm. L. 278. This act makes it the duty of the prothonotary "on the application of any person being the original holder (or assignee of such holder) of a note, bond, or other instrument of writing, in which judgment is confessed, or containing a warrant for an attorney-at-law, or other person to confess judgment, to enter judgment against the person or persons, who executed the same for the *62
amount, which, from the face of the instrument, may appear to be due, without the agency of an attorney, or declaration filed." In Meyers and Joly v. Freiling,
The appellants bring to our attention the case of Pacific Lumber Co. v. Rodd,
It is not necessary to discuss any other questions in this case.
An order striking off the judgment is the appropriate remedy when the entry of judgment was unauthorized: Banning v. Taylor,
The assignments of error are overruled and the decree of the court below is affirmed. *64