Osterhout v. Briggs

37 Pa. Super. 169 | Pa. Super. Ct. | 1908

Opinion by

Porter, J.,

The defendants executed and delivered to the plaintiff, for a debt actually owing, on March 17, 1903, their judgment note for the payment of $500, with interest, in three years and nine months after date. The instrument contained a warrant of attorney authorizing a confession of judgment thereon “in any court having jurisdiction, in term time or vacation, at any time after the maturity of this note and before its payment.” The plaintiff caused judgment to be entered under the warrant of attorney, by the prothonotary, on April 1, 1903, before the maturity of the note. On December 18,1906, one day after the maturity of the note, H. S. Harding, Esq., filed a paper, in the same proceeding in which the original judgment had been entered, confessing judgment against the defendants in accordance with the terms of the power of attorney in said note contained,” and at the same time filed a praecipe for a writ of scire facias on said judgment, which execution issued the same day. S. H. Briggs, one of the defendants, on December 31, 1906, filed his petition praying for a rule to stay the fi. fa. and strike off the judgments. There is nothing in the record to indicate that S.-H. Briggs had notice of the entry of either of the judgments prior to the filing of this petition. The court below stayed the fi. fa. and after hearing struck off the judgments. The plaintiff appeals from this order.

The first judgment having been prematurely entered was irregular and voidable at the instance of the defendant, and the appellee having proceeded in the proper manner to avoid this judgment, it was properly stricken off: Eddy v. Smiley, 26 Pa. Superior Ct. 318; Allen v. Krips, 119 Pa. 1. The action of the plaintiff in causing the first judgment to be entered was a complete execution of the power conferred by the warrant of attorney and resulted in the entry of an actual judgment in a court having jurisdiction of the subject-matter; this judgment it is true was irregular and voidable at the instance of the defendant only, but it was not absolutely void, and as against parties other than the defendants it was not even voidable: Crosby v. Massey, 1 P. & W. 229; Hauer’s Appeal, 5 W. & S. 473; Drexel’s Appeal, 6 Pa. 272; Harres v. Commonwealth, 35 Pa. 416; Kohler v. Luckenbaugh, 84 Pa. 258; Harper v. Biles, 115 Pa. 594. The power conferred by the warrant of attorney was exhausted by the entry of the first judgment, although that judgment was irregular and liable to be defeated by the defendants in case they took proper action to that end and did not estop themselves by acquiescence. The second judgment was, therefore, likewise irregular and the court below committed no error in striking it off: Philadelphia v. Johnson, 23 Pa. Superior Ct. 591; s. c. 208 Pa. 645.

The order of the court below is affirmed and the appeal dismissed at costs of the appellant.