Opinion
October 12, 1928.
November 21, 1928.
Judgment — Confession of judgment — Warrant of attorney — Exhaustion of power to confess judgment — Lease.
A second judgment, entered on a lease containing a warrant of attorney to confess judgment is properly stricken off, where it appears that a prior judgment has been entered by virtue of the same warrant of attorney.
Although the prior judgment was stricken off for the reasons that there was no averment of default, and that a copy of the lease, and not the original, had been filed, nevertheless the rights under the original lease were exhausted.
The question whether the power to enter a judgment was exhausted by the entry of the first judgment is not to be determined by what paper was filed by the prothonotary, but by what authority plaintiff acted.
Appeal No. 195, October T., 1928, by plaintiff from order of C.P., No. 3, Philadelphia County, December T., 1927, No. 19,431, in the case of S. Jacobs and Son v. Sylvester Busedu and Mary Busedu.
Before PORTER, P.J., HENDERSON, TREXLER, KELLER, LINN, GAWTHROP and CUNNINGHAM, JJ. Affirmed.
Rule to strike off judgment. Before FERGUSON, J.
The facts are stated in the opinion of the Superior Court.
The court made absolute the rule. Plaintiff appealed.
Error assigned, among others, was the order of the court.
Ben W. Ingber, and with him Max C. Baylinson, for appellants, cited: Lichow v. Williams, 30 Pa. District Reports 181; Union Bank of Nanty-Glo v. Schnabel et al., 291 Pa. 228; Oberlin v. Parry, 287 Pa. 224.
Samuel Melnick, for appellee, cited: Bellevue Borough v. Hallett, 234 Pa. 191.
Argued October 12, 1928.
Plaintiffs leased a piano to defendants by a contract in writing, which authorized the prothonotary of any court of record, in case of default in the payment of rent, to confess judgment against defendants for the amount thereof. By virtue of this authority plaintiffs caused the prothonotary of Court of Common Pleas No. 2 of Philadelphia County to enter a judgment on the lease. It appears that only a copy of the lease, and not the original lease, was filed in the court. It does not appear that the original lease was not produced before the prothonotary at the time of the entry of the judgment. Subsequently the court struck off the judgment on the grounds that no averment of default was filed, and that the amount due under the lease did not appear on the face of the instrument. Still later, on February 28, 1928, another judgment by confession was entered in Court of Common Pleas No. 3, upon the same warrant. From an order making absolute a rule to strike off this judgment, this appeal was brought.
The sole question to be determined is whether, when plaintiffs caused the first judgment to be entered, they exhausted the warrant of attorney, under the firmly established rule of law that a power to confess judgment authorized by a warrant of attorney is exhausted by entering a judgment thereon, and a subsequent judgment entered on the same warrant, after the prior judgment has been stricken off for irregularities appearing on the face of the record, will be stricken off. See Bellevue Borough v. Hallett, 234 Pa. 191; Com. v. Massi, 225 Pa. 548; Osterhaut v. Briggs, 37 Pa. Super. 169. In our view that rule is controlling in this case. The contention of appellants is that the first judgment was confessed on a copy of the lease; that the prothonotary had no authority to accept a copy; and that the power to enter judgment could not have been exhausted because the paper which gave the power to enter judgment was still in appellants' hands and was used for the first time in entering the judgment under consideration. The argument is based upon a false premise. The authority which plaintiffs sought to exercise, when they entered the first judgment, was that given by the lease itself. As stated above, it does not appear that the lease was not exhibited to the prothonotary when he entered the first judgment. While it should have remained on file as evidence of the authority for the judgment and the protection of the defendants, (Fraley's Appeal, 76 Pa. 42) its re-delivery to plaintiffs did not have the effect of rendering the judgment a nullity. Surely plaintiffs are not in a position to assert that the judgment was not entered under the warrant in the lease; for they had no other authority to enter it. The question whether the power to enter a judgment was exhausted by the entry of the first judgment is not to be determined by what paper was filed by the prothonotary, but by what authority plaintiffs acted. We have no difficulty in concluding that they were exercising their power under the warrant in the lease. It follows, that they could not enter another judgment under it.
Judgment affirmed.