Altoona Trust Co. v. Fockler

• Decision Date: 10 April 1933
• Docket Number: 177
• Citation: 311 Pa. 426,165 A. 740
• Parties: Altoona Trust Co. v. Fockler, Appellant
• Court: Pennsylvania Supreme Court

165 A. 740

311 Pa. 426

Altoona Trust Co. v. Fockler, Appellant

No. 177

Supreme Court of Pennsylvania

April 10, 1933

Argued March 29, 1933

Appeal, No. 177, Jan. T., 1933, by defendant, from order of C.P. Blair Co., Oct. T., 1930, No. 465, discharging rule to strike judgment from the record, in case of Altoona Trust Company v. E. A. Fockler, otherwise Ernest Alonza Fockler. Affirmed.

Rule to strike judgment from record. Before PATTERSON, P.J.

The opinion of the Supreme Court states the facts.

Rule discharged. Defendant appealed.

Error assigned, inter alia, was discharge of rule, quoting record.

The order is affirmed.

Edward J. Harkins, of Scanlan & Harkins, for appellant. -- If the warrant of attorney is in existence as it was in this case and there is no rule of court permitting the entry of judgment upon a copy (and there was no such rule in this case), then the original warrant must be filed with the prothonotary at the time judgment is entered, and if it is not so filed the judgment is void: Maloney v. White, 24 Pa. C.C.R. 23; Weaver v. McDevitt, 21 Pa.Super 597; Boggs v. Levin, 297 Pa. 131.

If the courts permit the entry of judgments by confession upon copies of warrants of attorney, regardless of the place of payment of the obligation, we would then have a situation where upon one obligation containing a warrant of attorney judgments might be entered against the defendants upon copies in every county of the Commonwealth.

The judgment including within itself something which was not authorized by the warrant is entirely void and should be stricken off: Essrig v. Greenburg, 5 Pa. D. & C. 183; Liberty Grotto v. Mead, 1 Pa. Dist. R. 639; Eddy v. Smiley, 26 Pa.Super. 318; Grakelow v Kidder, 95 Pa.Super. 250; Bennett v. Haley, 142 Pa. 253; Bogg v. Levin, 297 Pa. 131.

Thomas C. Hare, with him Robert F. Hare, for appellee. -- Filing the original obligation and warrant is not essential: Wilson v. Richard, 298 Pa. 17.

The original contract may be presented and filed at the time of the hearing of the rule to strike off the judgment: Wilson v. Richard, 298 Pa. 17.

If the defendant waives exemption, inquisition, condemnation and extension, the inclusion of the phrase "and agreeing that such real estate shall be sold on said writ," in the confession, does not invalidate the judgment.

The inclusion of the objectionable phrase, if an error, affects process only and is waived by the defendant: Phila. v. Johnson, 23 Pa.Super. 591; Willis-Winchester Co. v. Clay, 293 Pa. 513; Public Lumber Co. v. Rodd, 287 Pa. 454.

The judgment may be corrected: Mars Nat. Bank v. Hughes, 243 Pa. 223; Pacific Lumber Co. v. Rodd, 287 Pa. 454.

Before FRAZER, C.J., SIMPSON, KEPHART, SCHAFFER, MAXEY and LINN, JJ.

OPINION

MR. JUSTICE MAXEY:

This is an appeal from the order of the Court of Common Pleas of Blair County discharging a rule to strike judgment against the defendant from the record. The chief question involved is as to the validity of a judgment confessed upon a copy of an obligation containing a warrant of attorney where the original obligation is not filed or produced at the time of the entry of judgment and there is nothing of record to show the original obligation had been lost or destroyed. The facts are as follows:

December 4, 1930, the plaintiff, Altoona Trust Co., filed in the prothonotary's office of Blair County a declaration and confession of judgment against appellant and fourteen other defendants in the sum of $31,495.48 together with interest thereon from February 28, 1930, plus costs and with attorney's fees of 10%. This was done pursuant to a written agreement entered into between plaintiff and the fifteen defendants guaranteeing payment at maturity of a promissory note given plaintiff by one of its debtors, the Barr Manufacturing Corporation. This agreement provided, inter alia, ". . . if the said note, or any renewal or renewals thereof, with interest at the rate of six (6) per cent per annum, is not paid at maturity, we, and each of us, do hereby covenant to pay the same, and we, and each of us, empower any prothonotary or attorney of any court of record within the United States, or elsewhere, to appear for us, and each of us, and after one or more declarations filed, confess judgment against us, and each of us as of any term, for the amount of the said principal indebtedness remaining unpaid, together with interest which has accrued thereon, or may thereafter accrue, with costs of suit and attorney's commission of ten (10) per cent for collection, releasing all errors, waiving the necessity of any preliminary demand upon us, or any of us, for payment of the said judgment, and waiving the rights to claim for any property any statutory exemption from levy and sale, and waiving inquisition and condemnation upon any real estate that may be levied on by virtue of any writ of fi. fa. issued upon any judgment obtained on this obligation."

The judgment was entered by virtue of this agreement, of which a copy was attached to the plaintiff's declaration and marked Exhibit "A." December 8, 1930, plaintiff filed an exemplified copy of the Blair County record of judgment in the Court of Common Pleas of Cambria County. The original agreement, pursuant to which the Blair County judgment was entered, was not filed in the prothonotary's office until argument on May 5, 1932, on the rule to show cause why the judgment should not be stricken off, granted on defendant's petition of April 4, 1932. This petition assigned as grounds for striking off the judgment the following:

"(a) Said judgment appears to have been confessed upon a copy of an alleged agreement and there is nothing of record to show that the original agreement is lost or destroyed.

"(b) The warrant of attorney is to be strictly construed and there was no authority given the attorney who confessed said judgment to confess judgment, 'and agreeing that such real estate shall be sold on said writ,' -- (referring to real estate that may be levied on by virtue of any writ of fi. fa. issued upon said judgment). The authority in the warrant having been exceeded, the judgment should be stricken off."

April 25, 1932, appellee filed an answer and the court granted a rule to show cause why the clause referred to in (b) above should not be stricken out of the judgment. May 2, 1932, appellant filed a reply to appellee's answer to the former's rule and on that day oral argument was had, plaintiff producing at that time and place the original contract and asking leave to file it. May 9, 1932, a decree directing the filing of the original agreement was entered and it was made part of the record. September 3, 1932, the opinion and decree discharging the rule to strike off the judgment was filed, the judgment being sustained. Defendant now appeals therefrom.

The questions appearing in the record are:

(1) The question stated in the first paragraph of this opinion.

(2) Is it error for the court to give leave to file the original obligation at the time of argument of a rule to show cause why the judgment should not be stricken off?

(3) Does the erroneous inclusion of the clause, "and agreeing that such real estate shall be sold on said writ" invalidate judgment entered by confession on an agreement expressly waiving inquisition and condemnation of real estate levied on under a writ of fi. fa. and expressly releasing all errors?

(4) Is it error for the court to give leave to conform the judgment to the warrant of attorney by striking out that clause?

There is no rule of court in Blair County relating to confessions of judgment by attorneys, and none requiring that the original obligation be filed. But it appears that the custom has long prevailed in that county of entering judgments on mere copies of agreements containing warrants for the confession of judgment.

This custom is of doubtful wisdom and might easily lead to difficulties and inflict injustice on debtors. If the custom should become state-wide, it would be possible for judgments to be entered on the same date in the 67 counties of the State on copies of an original warrant of...