139 A. 862 | Pa. | 1927
Argued October 3, 1927. The subject-matter of this dispute is a judgment note for $6,000, dated March 22, 1922, payable to the Union Bank of Nanty-Glo, one day after date, signed by the Park Hill Coal Company, a corporation, as maker and carrying on its face a warrant of attorney to confess judgment. On the reverse side of the obligation is a printed form of assignment to the bank, with a guaranty of payment at maturity and direction authorizing any attorney of record to confess judgment against the persons who executed the assignment and guaranty. Payment not having been met, plaintiff, on November 25, 1925, delivered to and filed the note with the prothonotary of Cambria County, with instructions to enter judgment against the Park Hill Coal Company, Dan. R. Schnabel and Herman M. Widmann, and four others. Judgment was entered in pursuance of that direction, in favor of the bank and against defendants named in the præcipe furnished the prothonotary, and execution issued against defendants. Later Schnabel and Widmann petitioned the court to strike off the judgment alleging it to be improperly entered and confessed, for the reason that it was a joint judgment entered by payee against maker and endorsers of the guaranty of payment and founded on two separate warrants of attorney. A rule to show cause was granted. Subsequently counsel for plaintiff filed with the prothonotary a copy of the note, *231 the original being on file in the prothonotary's office, authorizing and directing that officer to enter judgment against the persons who signed the agreement on the reverse side of the obligation. Later Schnabel and Widmann presented their petition asking that the second judgment be stricken off because the power authorizing it had been exhausted by the entry of the first judgment, which remained of record in the common pleas. The court granted a rule on plaintiff bank to show cause why this second judgment should not be stricken from the record. An answer filed by the bank admitted all facts shown in the record, but averred the subsequent judgment was properly confessed and entered upon an authorized and sufficient warrant, unused and unexhausted, the warrant being that set forth on the back of the note. After hearing, the motion to strike off was dismissed, the rule discharged, and from this order the case comes before us on appeal by petitioners.
Appellants present but one assignment of error, to the effect that at the time plaintiff caused the first judgment to be entered against the Park Hill Coal Company, Schnabel, Widmann, and four others, it thereby used and exhausted that warrant and no authority remained for the second confession which was consequently irregular and invalid. It is undoubtedly true that the law as stated in this assignment of error as to the first judgment is a correct statement of an old and firmly established rule of law in this Commonwealth, recognized by our courts for a century: Mars Nat. Bank v. Hughes,
The situation and circumstances of this dispute are quite plain. It should first be noted that but one written instrument figures in this litigation. On its face it is undoubtedly a judgment note, signed by the Park Hill Coal Company as maker, payable to the order of the Union *232 Bank of Nanty-Glo, and containing a warrant of attorney authorizing confession of judgment. It is a complete obligation on the part of the coal company to pay the amount set forth in the note, the company being without question primarily liable, and against whom the plaintiff bank, payee, was authorized, by virtue of the power of attorney contained in the body of the instrument, to enter judgment and proceed to execution for the amount of the debt. There is more to this obligation. On the reverse side is a printed form by which the note was, for value received, assigned to the Union Bank of Nanty-Glo, with a guarantee of payment at maturity and direction that "The prothonotary of any court of record is hereby directed to any time enter judgment against" the signers, Schnabel and Widmann, appellants, and four other persons.
The sole question to be determined is whether the entry of the second judgment was based on a warrant of attorney that, having once been exercised, was consequently exhausted and functus officio, or upon another and separate unused warrant. It will be necessary to give attention to the comparative import and intent of the agreements set forth on each side of the note and the attached signatures.
The contract on the face of the paper admits of no doubt as to its nature. It obligates the maker, the Park Hill Coal Company, to pay the sum of $6,000 to plaintiff bank, and in default of payment at maturity empowers any attorney of record to appear for the maker and confess judgment in favor of the bank. The only signature to this instrument is that of the coal company, with the customary additions of the name of the president and treasurer of the corporation. That judgment, entered on the note against the only signer to it, the Park Hill Coal Company, and no others, would be regular, valid and operative, is obvious, and it is equally plain that the entry of a second or subsequent judgment by virtue of the same warrant would be wholly irregular. *233
This court has held in numerous cases that a judgment, entered by the prothonotary upon an authority to confess contained in a written instrument, exhausts the power and a second judgment entered by that authority is illegal and should be stricken off. The prothonotary has no better right than an attorney-at-law to enter two judgments on a single warrant: Ely v. Karmany,
There remained, however, unexecuted the warrant of attorney in the collateral obligation on the back of the note, signed by Schnabel and Widmann, and of this plaintiff could take advantage in another effort to secure payment of its loan. This advantage it availed itself of by entering judgment on that warrant against petitioners. The judgment so entered was regular and valid, being against the actual signers of the warrant of attorney upon which it was entered.
We have said above that the second judgment recorded on this paper was based on a wholly independent agreement and warrant of attorney from that set forth on the face of the obligation. From its terms the contract on the back of the instrument constituted an agreement to pay, collateral to the obligation of the coal company, the primary debtor, not signed by the coal company, but executed by appellants here and understood and intended by them as their individual and separate *235 promise to pay the note upon maturity if the maker defaulted; and in the event of its default to pay, they authorize, in a warrant of attorney entirely separate from the one on the face of the note, entry of judgment against them.
Counsel for plaintiff and the court below have relied upon the case of Agricultural Trust Co. v. Brubaker Shaub,
Appellants' rule to show cause why the judgment entered against them should not be stricken off was properly discharged by the court below.
Judgment affirmed at appellants' costs. *236