Automobile Banking Corp. v. Duffy-Mullen Motor Co.
| Decision Date | 28 April 1925 |
| Docket Number | 34-1925 |
| Citation | 85 Pa.Super. 296 |
| Parties | Automobile Banking Corporation, Appellant, v. Duffy-Mullen Motor Company |
| Court | Pennsylvania Superior Court |
Argued March 4, 1925
Appeal by plaintiff, from decree of C.P. Lackawanna County-1924, No 856, in the case of Automobile Banking Corporation v Duffy-Mullen Motor Company.
Rule to strike off judgment. Before Newcomb, J.
The facts are stated in the opinion of the Superior Court.
The court made absolute the rule, Plaintiff appealed.
Error assigned was, among others, the decree of the court.
Robert E. Dolphin, for appellant. -- The judgment was not bad for uncertainty and the amount could be gathered from the assignment: Cobb Bros. v. Yetter, 4 C. C. 293; Cooper v. Shaver, 101 Pa. 547; Union Acceptance Co. v. Grant Motor Sales Co., 5 D. & C. 407; Champlin v. Smith, 164 Pa. 481.
Frank M. Walsh, for appellee. -- If the amount could not be ascertained from the face of the instrument the prothonotary could not enter judgment: Whitney v. Hopkins, 135 Pa. 246, at page 254; Connay v. Halstead, 73 Pa 354; Lytle v. Colts, 27 Pa. 194; Eddy v Smiley, 26 Pa.Super. 318.
Before Porter, Henderson, Trexler, Keller, Linn and Gawthrop, JJ.
Joseph Cipilewski gave Duffy-Mullen Motor Co. his promissory note for $ 360.96, dated May 5, 1924, payable in twelve monthly installments of $ 30.08 each, beginning one month after date. It contained a warrant of attorney to confess judgment for the above sum, with 15% attorney's commission, release of errors and without stay of execution; and waived inquisition and condemnation of any real estate. The payee, Duffy-Mullen Motor Co., assigned this note by endorsement in writing to Automobile Banking Corporation. The assignment contained a guarantee by the Duffy-Mullen Motor Co. to pay " the principal and interest of the within note, as and when the same shall become due, and of any extension thereof in whole or in part" ; authorized such extension without notice to the assignor, and waived presentment for payment, demand and notice of protest and nonpayment. It further authorized and empowered " any attorney of any court of record of Pennsylvania or elsewhere, to appear for, and to enter judgment against the undersigned . . . . waiving all exemption laws, subject to all of the terms and conditions stipulated in the within note, with like force and effect as the maker or makers thereof."
On July 30, 1924, the plaintiff, Automobile Banking Corporation, presented this note and endorsement to the prothonotary of Lackawanna County, who entered judgment against the Duffy-Mullen Motor Co., the payee and assignor of the note for $ 360.96, payable in twelve installments, with costs and 15% attorney commissions waiving stay, inquisition and exemption.
On petition of the defendant in the judgment the court of common pleas granted a rule to show cause why the judgment so entered should not be stricken off, and subsequently made the rule absolute. The plaintiff appeals from this order.
We agree with the learned court below that the assignment was not sufficiently definite to support the judgment entered. The Act of February 24, 1806, section 28, 4 Sm. L. 278, under which authority this judgment was entered, makes it the duty of the prothonotary " on the application of any person being the original holder (or assignee of such holder) of a note, bond or other instrument of writing, in which judgment is...
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