Peoples Nat. Bank of Reynoldsville v. D. & M. Coal Co.

• Court: Superior Court of Pennsylvania
• Citation: 187 A. 452
• Parties: PEOPLES NAT. BANK OF REYNOLDSVILLE, to Use of MOTTERN v. D. & M. COAL CO. et al. Appeal of O'HERN et al.
• Decision Date: 09 October 1936

187 A. 452

PEOPLES NAT. BANK OF REYNOLDSVILLE, to Use of MOTTERN
v.
D. & M. COAL CO. et al.
Appeal of O'HERN et al.

Superior Court of Pennsylvania.

Oct. 9, 1936.

Appeal No. 244, April term, 1936 from decree of Court of Common Pleas, Jefferson County, No. 122, August term, 1926; W. T. Darr, President Judge.

Proceedings by the Peoples National Bank of Reynoldsville, a corporation, now to use of Mrs. Celesta Mottern, against the D. & M. Coal Company, J. J. O'Hern, and others, wherein Revs. T. Maurice O'Hern and another, executors of the estate of J. J. O'Hern, deceased, filed petition and obtained a rule to strike off judgment confessed against deceased. From a judgment discharging the rule to strike off, the executors appeal.

Order discharging rule to strike off the judgment reversed, and the rule reinstated, and record remitted with instructions.

Argued before KELLER, P. J., and CUNNINGHAM, BALDRIGE, STADTFELD, PARKER, JAMES, and RHODES, JJ.

Alex S. Scribner, of Brookville, and F. Cortez Bell and Bell & Brockbank, all of Du Bois, for appellants.

Smith M. McCreight, of Reynoldsville, and N. F. Womer, of Du Bois, for appellee.

CUNNINGHAM, Judge.

Judgment was entered against the above-named defendants in the court below on May S, 1926, by direction of the plaintiff's attorney. As his authority he presented a demand note for $1,700, in which D. & M. Coal Company was the maker, and Vail, Kettle, Dinger, and O'Hern, the other defendants, were the payees. The note contained a warrant of attorney to confess judgment against the maker. On the reverse side of the note was an assignment to the plaintiff bank and a guaranty of payment of the note, which also contained a confession of judgment signed by all the payees and assignors.

On May 26, 1926, one of the defendants, O'Hern, filed a petition to open the judgment as to him, alleging as his defense that his signature was a forgery. A rule was granted and all proceedings against the petitioner stayed. The plaintiff filed an answer on July 6, 1926, denying the allegations of the petition. No further steps were taken on the rule, nor has any disposition been made of it. By attachment execution proceedings against the maker in 1926, a portion ($1,015.22) of the debt was collected.

187 A. 453

On June 25, 1926, an exemplification of the record of this judgment was entered in Clearfield county. On February 20, 1935, the interest of the plaintiff bank having passed to the present use plaintiff, attachment execution proceedings were instituted in that county against the executors of J. J. O'Hern, who had died on September 8, 1933. They petitioned the Clearfield county court to strike off the judgment as against their decedent, and also to open it and let them into a defense, assigning various reasons. Taking cognizance of the fact that there was a rule to open the judgment outstanding in Jefferson county, President Judge Smith of Clearfield County entered the following decree: "And now, April 12, 1935, in accordance with the opinion filed herewith, the rules to strike off and to open the judgment * * * and the attachment execution * * * are hereby discharged; but further proceedings upon said attachment execution are hereby stayed * * * for a period of sixty days, with leave to the petitioners to apply for an extension * * * upon showing the diligent prosecution of the issues in Jefferson County in the meantime."

Pursuant to the intimations of this decree and the supporting opinion, the O'Hern executors, on April 24, 1935, filed a petition and obtained a rule in Jefferson county, to strike off the judgment as against their decedent because it had been illegally entered. The error alleged was: "That judgment was erroneously confessed against the D. & M. Coal Company and the payees of said note in one confession and to the same number and term whereas the power to confess allegedly shown by said note are separate powers or warrants of attorney." The use plaintiff...