Opinion by
This is an appeal from the order of the court below opening a judgment which had been entered upon the following note:
“$1,200.00 August 3, 1959
One day after date we promise to pay to the order
of David Bose and Phyllis Bose
Twelve Hundred ....................... Dollars
*456 Payable at....................................
Without defalcation, value received, with interest.
And further, we do hereby empower any Attorney of any Court of Eecord within the United States or elsewhere to appear for us and after one or more declarations filed confess judgment against us as of any term for the above sum with Costs of suit and Attorney’s commission of 15 per cent for collection and release of all errors, and without stay of execution and inquisition and extension upon any levy on real estate is hereby waived and condemnation agreed to and the exemption of personal property from levy and sale on any' execution hereon, is also hereby expressly waived, and no benefit of exemption be claimed under and by virtue of any exemption law now in force or which may be hereafter passed.
Witness our hand and seal No.....Due .........
Martin L. Cohen (Seal) Jean Cohen (Seal)”
The following language appeared upon the reverse side of the note:
“$1,200.00 to be paid in equal monthly payments within a period of 5 years at the rate of
6%, monthly payment is to be $23.20.
Aug — 1959
2891”
The: court below disposed of the case upon petition and answer. No depositions were taken nor was any evidence given.
Our purpose is to determine whether this was an abuse of discretion:
Glass v. Farmers National Bank of Watsontown,
Trustee,
In an assumpsit action ah answer on the merits is necessary to put case at issue:
Scott v. McEwing,
337
*457
Pa. 273, 275,
“In proceedings to open judgment the practice by-petition and answer is well established. ‘When the answer was filed, defendant had the choice of taking depositions, limited, of course, to the issues made by the pleadings (Fisher v. King,
Substantially the same practice is provided for by Pa. R. C. P. No. 209. 1
*458 Taking the averments of the answer as true, we have the following facts established: That on or about March 8, 1959 the parties entered into an agreement of sale whereby the defendants agreed to purchase the plaintiffs’ real estate located at 8625 Temple Road, Philadelphia, Pennsylvania; that on the said date the defendants entered into a collateral agreement with the plaintiffs to purchase from them certain items and fixtures then located in the plaintiffs’ home for the sum of $1,200.00 to be paid at time of settlement for the real estate; that settlement was held for the real estate on August 3, 1959, at which time the defendants were unable to pay the aforesaid sum of $1,200.00; that the plaintiffs agreed to accept a $1,200.00 judgment note payable one day after date, which is herein-before set forth in full; that the defendants secured possession of the real estate and the items and fixtures then located in plaintiffs’ home on or about September 5, 1959; that the parties agreed that the note was to be entered immediately in order to act as a lien against the real estate and that execution was to be issued only in the event of default in the monthly installments as set forth on the reverse side of the note; that three monthly payments of $23.20 each were made in the months of September, October and November, 1959; that the plaintiffs never made any declaration or statement to the defendants that they need not make the payment due in December. It is clear that the note did not contain an acceleration clause but in our judgment this did not prevent the entry of judgment for the full amount of $1,200.00 at any time one day after the date of the note.
While it has been held that an instrument payable in installments containing a warrant to confess judgment can be entéred at any time:
Whitney v. Hopkins,
The note did not provide for an averment of default. It merely provided for the filing of a declaration.
“Almost all notes contain the words ‘and after one or more declarations filed confess judgment.’ This is a relic of the ancient practice of entering all notes by amicable action prior to the Act of 1806. Since that act the prothonotary can enter a proper note without declaration though the note states ‘after one or more declarations filed.’ These words can be disregarded: Montelius v. Montelius, Brightly, 79; Rex v. Nelson,
“In the absence of some restriction upon the right to enter judgment until after a specific défault, there is no reason why a judgment note given as security in a fixed sum may not be made a matter of. record, though no money was then payable: Integrity Title Ins. Co. v. Rau,
If the warrant of attorney authorizes the entry of judgment “after default” it is necessary to file an averment of default before the entry of judgment:
Kolf v. Lieberman,
We are of the opinion that it was not necessary under the terms of this note to file either an averment of default or a declaration as a condition precedent to the entry of judgment. The lower court’s action in *460 opening the judgment was, therefore, an abuse of discretion.
To warrant the opening of a judgment, a meritorious defense must be shown:
Ferguson, Exrx. v. O’Hara et al.,
In our opinion execution could only be issued for past due and unpaid installments because the note did not contain an acceleration clause. While the plaintiffs in their answer aver such an agreement, there was no averment that the acceleration clause was omitted from the note by fraud, accident or mistake.
Order reversed and judgment reinstated.
Notes
Rule 209.
“If, after the filing and service of the answer, the moving party does not within fifteen days:
(a) Proceed by rule or by agreement of counsel to take depositions on disputed issues of fact; or
(b) Order the cause for argument on petition and answer (in which event all averments of fact responsive to the petition and properly pleaded in the answer shall be deemed admitted for the purpose of the rule) ; ■
the respondent may take a rule as of course on the moving party to show cause why he should not proceed as above. If after hearing the rule shall be made absolute .by the court,', and the petitioner shall not proceed, as above -provided, within fifteen days thereafter, the respondent may order the cause for argument on petition and answer, in which event all averments of fact responsive to the petition and properly pleaded in the answer shall be deemed admitted for the purpose of the rule.”