Volk v. Shoemaker
| Decision Date | 03 January 1911 |
| Docket Number | 102 |
| Citation | 78 A. 933,229 Pa. 407 |
| Parties | Volk v. Shoemaker, Appellant |
| Court | Pennsylvania Supreme Court |
Argued October 6, 1910
Appeal, No. 102, Oct. T., 1910, by defendants, from order of C.P. Somerset Co., Sept. T., 1909, No. 148, discharging rule to open judgment in case of Bernard Volk, Jr., use of David Pierce, v. Jane V. Shoemaker and W. R. Shoemaker. Reversed.
Rule to open judgment.
The facts are stated in the opinion of the Supreme Court.
The court discharged the rule to open judgment.
Error assigned was the order of the court.
The order of the court below, discharging the rule to open the judgment, and to let the defendants into a defense, is reversed and set aside; and the rule is now made absolute.
W. H Ruppel, with him C. F. Uhl, Jr., for appellant. -- The defendant was clearly entitled to have the judgment opened Huckestein's App., 3 Pennypacker, 55; Sloan v. Brown, 15 W.N.C. 111; Wilson's App., 109 Pa. 606; Fisher v. O'Donnell, 153 Pa. 619; Cloud v. Markle, 186 Pa. 614; Schweyer v. Walbert, 190 Pa. 334; Hafer v. Boner, 10 York, 93; Milton Nat. Bank v. Beaver, 25 Pa.Super. 494; Stockwell v. Webster, 160 Pa. 473; Heimgartner v. Stewart, 180 Pa. 500; Lee v. Sallada, 7 Pa.Super. 98.
J. C. Lowry, for appellee. -- This entire matter is one of discretion for the court below and as such cannot be the subject of a writ of error and no appeal lies in an adverse decision: Renninger v. Thompson, 6 S. & R. 1; White v. Leeds, 51 Pa. 187; Gump's App., 65 Pa. 476.
Before FELL, C.J., BROWN, MESTREZAT, POTTER, ELKIN, STEWART and MOSCHZISKER, JJ.
This appeal is from the refusal of the court below to open a judgment, entered by confession upon a bond conditioned for the payment of the sum of $3,500 and interest. The bond was dated August 22, 1908, payable in three years. Judgment was entered June 19, 1909, and execution issued the same day. Upon the petition of the defendants, the court below stayed the writ, and granted a rule to show cause why the judgment should not be opened. Depositions upon both sides were taken; and, after a hearing, the court below discharged the rule. It appears from the petition of the defendants, and from the depositions taken in support thereof, that Jane V. Shoemaker and W. R. Shoemaker were the owners of certain real estate in Allegheny county, and through one W. D. Repper, a real estate agent at McKeesport, they agreed to make an exchange with one W. C. Schroeder for a farm in Somerset county, and to pay him in addition the sum of $1,500 in cash. For the purpose of raising this sum, and an additional amount of $2,000, the defendants executed a judgment bond and mortgage for $3,500 to Bernard Volk, Jr., who had no interest in the transaction and gave them no consideration, but simply permitted the use of his name. The bond and mortgage were delivered to Repper in order that he might negotiate them for the purposes stated. It seems that Volk assigned the bond and mortgage to David Pierce, the use plaintiff, under an agreement by which Pierce was to pay $1,500 cash to Repper and $700 more when the bond and mortgage should be paid in full by the obligors; but that Repper paid Schroeder only $1,200, instead of $1,500, the amount agreed to be paid.
In the answer filed by David Pierce it is stated that he afterwards agreed with Repper to pay $1,920 for the bond and mortgage, and that he actually paid that sum. In his deposition W. R. Shoemaker testified that he never authorized Volk or Repper, or any one else, to dispose of the bond and mortgage for anything less than its face value. It is admitted by all parties that Volk, the mortgagee, advanced no money, and had no real interest in the transaction. His name was used merely to facilitate the matter. While the transaction was in form a purchase of a bond and mortgage, yet in substance, and as a matter of fact, it was a loan by Pierce of the sum of $1,920, directly to the mortgagors. The money was paid to Repper, the agent of the mortgagors. There is but little if any dispute as to the material facts, and if the evidence, as set forth in the depositions is to be credited, the plaintiff is not entitled to recover on his judgment more than the amount he loaned, or paid out, for the bond and mortgage, with interest and costs. No copy of the judgment bond was printed in the record, but it is apparent from what is shown, that it authorized the entry of judgment at any time, and, under the Act of May 16, 1901, sec. 5, P.L. 194, the effect of a provision authorizing a confession of judgment before maturity, is to make the instrument nonnegotiable. The assignee of a bond, who fails to make inquiry of the obligor, takes it subject to any defense to which it was subject in the hands of the obligor: Lane v. Smith, 103 Pa. 415; Janes v. Benson, 155 Pa. 489, 492; Stokes v. Dewees, 24 Pa.Super. 471. The same rule applies to the assignee of a mortgage: Myerstown Bank v. Roessler, 186 Pa. 431; Carothers v. Sims, 194 Pa. 386.
The admitted facts of the present case seem to bring it within the principle laid down in Huckenstein v. Love, 98 Pa. 518. In that case a scire facias was issued by C. H Love, for use of W. C. Comingo, against John...
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