Philadelphia v. Johnson

23 Pa. Super. 591 | Pa. Super. Ct. | 1903

Opinion by

Smith, J.,

None of the rights arising from the relation of lessor and lessee are in controversy here; hence the authorities respecting them have no application. The issue in the case does not involve the right, but the remedy. The question before us is whether the power given in the lease authorized the entry of the judgment of July 11, 1902, a judgment under its authority having been entered on June 5, 1902.

A power exists in law only for some purpose, and when fully executed by the accomplishment of its purpose it is exhausted. The authority given by it ends when nothing remains to be done in pursuance of it. It may even be exhausted without being executed, when its purpose has been otherwise accomplished: Swift’s Appeal, 87 Pa. 502.

The purpose of the power or warrant of attorney in the present case was the entry by confession, in an amicable action, of a judgment in favor of the lessor against the lessee. This power was completely executed, and its purpose accomplished, by the entry of the judgment of June 5,1902. The power authorized nothing further, and nothing further remained to be done in pursuance of it. It became merged in the judgment. It is not material that it may have been prematurely executed, or that the judgment thus entered may have been voidable from matters outside the record. Though in the execution of the power the plaintiff may have misconceived his right of action under it, the power nevertheless remains fully executed; the execution cannot be recalled; and the power is exhausted. It was not the case of an imperfect execution of the power, but of a perfect execution, -with its effect liable to be defeated through matters not entering into the act of execution. Yet it is by no means clear that it was so defeated. In the history of the case it is said that “ the suit was discontinued by the appellee; ” the plaintiff’s answer to the defendant’s application to vacate the judgment sets forth, first, that the judgment “ was satisfied by reason of the fact that the action in ejectment was prematurely brought,” — the lessor having accepted rent after the notice to quit by which he intended to end the term, — and next, that the plaintiff “ discontinued the action brought.” This leaves much to conjecture. A discontinuance after-judgment is unknown in practice; and, while a recovery in ejectment may be released, the satisfaction of a judgment implies that its fruits have been received by the plaintiff. But, whatever the import of these allegations, it is undeniable, on both principle and authority, that the power was fully executed by the entry of judgment, and thereupon ceased to exist.

The question here involved has been presented under various aspects in our courts, and the authorities respecting it have been clear and uniform. In Campbell v. Canon, Add. 267, judgment was entered on a bond and warrant, and after a year and a day without execution a scire facias was issued ; then, to have immediate execution, the scire facias was discontinued, another judgment was entered on the warrant, and an execution was issued thereon. On motion to set aside this judgment and execution, the court said: “We think this warrant of attorney authorized the entry of only one judgment, and was satisfied hy the entry of the first judgment. The second judgment and the execution on it must therefore be set aside as irregular.” In Martin v. Rex, 6 S. & R. 296, judgment on a bond and warrant was entered first in Montgomery county and afterward in Philadelphia county. A rule to strike off the latter was made absolute, and in affirming this the Supreme Court said : “ This judgment was clearly entered irregularly; the warrant was to enter a judgment, which was done in Montgomery county, after which the warrant had no force.” In Neff v. Barr, 14 S. & R. 166, on a bond and warrant “to confess judgment or judgments in any of the courts of record of the state,” judgments were entered in York and Lancaster counties, and an issue was directed to determine in which county the judgment was first entered. On writ of error the Supreme Court said : “ The court in which the second judgment was entered would, under common circumstances, vacate it,” citing Martin v. Rex, supra. Ulrich v. Voneida, 1 P. & W. 245, involved the same question, and the Supreme Court, citing the preceding cases, said: “ It has been repeatedly determined that a bond with warrant of attorney to confess judgment authorizes the entry of but one judgment; and accordingly that when judgment is once entered the warrant becomes functus officio. A second or subsequent judgment by virtue of the same warrant is therefore wholly irregular.” In Adams v. Bush, 5 Watts. 289, on a bond for the performance of certain conditions in five installments, with a warrant “ to confess judgment or judgments,” separate judgments were entered at the same time for the amounts claimed as accruing on each installment. It was held that there, was no authority to enter these judgments, and further that the court below had no power to consolidate them into one, and all were stricken off. In Ely v. Karmany, 23 Pa. 314, judgment was entered first in Lancaster and then in Lebanon county, on a note containing a confession of judgment by the defendant. A rule to strike off the latter was made absolute, and in affirming this the Supreme Court said : “ The instrument on which the judgments were entered is, in construction of law, a power given to the prothonotary. He has no better right than an attorney at law to enter two judgments under a single warrant. The entry of the first judgment exhausts the power, and the court committed no error in vacating the second.”

In legal effect, there is no difference between the entry of judgment, on warrant of attorney, for a debt, and an entry of judgment in ejectment.

The release of errors in connection with the warrant of attorney operates only on irregularities in the proceeding apparent on the record. It does not reach the defect of a lack of authority to proceed. In Neff v. Barr, Adams v. Bush, and Ely v. Karmany, supra, there was a release of errors. In each of these cases, however, as in the one before us, the power had terminated before the entry of judgment; a defect of authority, arising from matters extrinsic to the record, not embraced in the release. In Davis v. Hood, 13 Pa. 171, a judgment having been entered on bond and warrant, containing a release of errors, a writ of error by the defendant was quashed on motion, before the return day, the court holding that “ the manner in which the judgment had been entered was right, and it being apparent from the record that there was no error in the matter.” There Avas no suggestion of a lack of authority to confess the judgment, and in other respects there was no difference between that case and the one before us, or the other cases cited.

In the case' in hand, the court below gave no reason for discharging the rule. For the reasons already given, the rule should have been made absolute.

The order discharging the rule is reversed, and the rule is reinstated and made absolute.