88 Pa. Super. 245 | Pa. Super. Ct. | 1926
Argued March 12, 1926. This appeal and another between the same parties were argued together. Each rests upon a separate order of the court below. In this opinion we shall state the material facts and indicate our disposition of each appeal.
On December 7, 1922, Basil M. Roland and his wife, both as principals, executed and delivered to the Pasco Rural Lighting Company, hereinafter called the Lighting Company, a written order for a lighting plant at the price of three hundred and thirty dollars, the fixtures *247 and appliances for the same to be shipped "f.o.b. factory." The order concluded with a promise to pay the price named at a designated place one year after the date of the instrument, and contained a warrant of attorney to enter judgment against the Rolands for the above sum, if not paid at maturity. On December 2, 1922, the Lighting Company transferred this instrument to the Commonwealth Trust Company, by endorsing it as follows: "For value received, I hereby transfer all my rights in the within note to Commonwealth Trust Company, Harrisburg, Penna., and each of us whose name is appended hereto become responsible to the holder as surety for the payment thereof, and consent to its condition, hereby confessing judgment, waiving protest, demand and notice of non payment. Pasco Rural Lht. Co. R.W. Powell, Pres., E.U. Schaeffer, Gen. Mgr., E.P. Hammer, Vice Pres." On August 24, 1923, the Trust Company caused this instrument to be filed with the prothonotary of the court below and judgment to be entered against the Rolands and the Lighting Company jointly by confession, upon the authority severally conferred by the warrant of attorney in the note and the confession of judgment signed by endorser. On February 18, 1924, the Rolands presented their petition to the court below, praying that the judgment should be opened as to them. A rule to show cause was granted, and before the same was disposed of the Rolands presented a petition to strike off the judgment as to them, on the ground that the judgment was entered before the date of maturity of the note, in violation of the warrant of attorney therein, which provided for the entry of judgment if the note was not paid at maturity. On April 13, 1925, both rules were discharged. On June 3, 1925, the Rolands presented a petition to the court below to set aside the order discharging the rule to open the judgment, and to reinstate said rule. Thereupon, the court made an order reinstating the original rule, to open, and after the *248 taking of additional testimony, made absolute the rule to open. The Commonwealth Trust Company has appealed from the order opening the judgment. The Rolands have appealed from the order discharging the rule to strike off the judgment.
The court below grounded its refusal to strike off the judgment on the principle announced in Treasurer of Division No. 168 v. Keller,
The judgment in this appeal is reversed, the rule to strike off the judgment is reinstated, and the judgment entered against the appellants is stricken off.