Pasco Rural Lighting Co. v. Roland

• Decision Date: 30 April 1926
• Docket Number: 8-1926
• Citation: 88 Pa.Super. 245
• Parties: Pasco Rural Lighting Company v. Roland et al., Appellants. (No. 1)
• Court: Pennsylvania Superior Court

88 Pa.Super. 245

Pasco Rural Lighting Company v. Roland et al., Appellants. (No. 1)

No. 8-1926

Superior Court of Pennsylvania

April 30, 1926

Argued March 12, 1926

Appeal by defendants, from judgment of C. P. Dauphin County-1923 No. 862, in the case of Pasco Rural Lighting Company, now for the use of the Commonwealth Trust Company, v. Basil M Roland, Mrs. Basil M. Roland and Pasco Rural Lighting Company.

Petition to open and strike off joint judgment entered by confession against principal and surety. Before Fox, J.

The facts are stated in the opinion of the Superior Court.

Rule to open made absolute. Rule to strike off discharged. Both Plaintiff and Defendants appealed.

Error assigned by plaintiff. Among others, was opening of the judgment.

Error assigned by defendant was the discharging of the rule to vacate and strike off the judgment.

Maurice R. Metzger, of Metzger & Wickersham, for appellants.

John McI. Smith, for appellees.

Before Porter, P. J., Henderson, Trexler, Keller, Linn and Gawthrop JJ.

OPINION

GAWTHROP J.

This appeal and another between the same parties were argued together. Each rests upon a separate order of the court below. In this opinion we shall state the material facts and indicate our disposition of each appeal.

On December 7, 1922, Basil M. Roland and his wife, both as principals, executed and delivered to the Pasco Rural Lighting Company, hereinafter called the Lighting Company, a written order for a lighting plant at the price of three hundred and thirty dollars, the fixtures and appliances for the same to be shipped " f. o. b. factory." The order concluded with a promise to pay the price named at a designated place one year after the date of the instrument, and contained a warrant of attorney to enter judgment against the Rolands for the above sum, if not paid at maturity. On December 2, 1922, the Lighting Company transferred this instrument to the Commonwealth Trust Company, by endorsing it as follows: " For value received, I hereby transfer all my rights in the within note to Commonwealth Trust Company, Harrisburg, Penna., and each of us whose name is appended hereto become responsible to the holder as surety for the payment thereof, and consent to its condition, hereby confessing judgment, waiving protest, demand and notice of non payment. Pasco Rural Lht. Co. R. W. Powell, Pres., E. U. Schaeffer, Gen. Mgr., E. P. Hammer, Vice Pres." On August 24, 1923, the Trust Company caused this instrument to be filed with the prothonotary of the court below and judgment to be entered against the Rolands and the Lighting Company jointly by confession, upon the authority severally conferred by the warrant of attorney in the note and the confession of judgment signed by endorser. On February 18, 1924, the Rolands presented their petition to the court below, praying that the judgment should be opened as to them. A rule to show cause was granted, and before the same was disposed of the Rolands presented a petition to strike off the judgment as to them, on the ground that the judgment was entered before the date of maturity of the note, in violation of the warrant of attorney therein, which provided for the entry of judgment if the note was not paid at maturity. On April 13, 1925, both rules were discharged. On June 3, 1925, the Rolands presented a petition to the court below to set aside the order discharging the rule to open the judgment, and to reinstate said rule. Thereupon, the court made an order reinstating the original rule, to open, and after the taking...