Opinion
March 12, 1930.
April 18, 1930.
Judgments — Striking off — Bailment lease — Failure to aver default — Effect.
On a petition to strike off a judgment, the record disclosed that the defendant ordered a tractor and executed a bailment lease. By the terms of the lease the defendant was to pay certain rentals and to have the privilege of purchasing the machine at the expiration of the lease. The lease also provided that if the lessee failed to settle for the hire of the machine, then in that event, the lessee empowered any attorney of record to appear for him and confess judgment against him. The plaintiff caused the judgment to be entered against the defendant by virtue of the power of attorney, but there was no allegation of default or delinquency on the part of the defendant, accompanying the entry of the judgment.
In such case a decree making absolute of the rule to strike off the judgment will be affirmed.
Where the authority to enter a judgment is dependent upon some act of omission, there must be an averment of such default or delinquency before a valid judgment can be entered.
Warrant of Attorney — Release of Errors — Effect.
A release of all errors in a warrant of attorney applies only to errors or irregularities in the proceedings apparent on the record, and does not affect the right of the defendant to question the lack of power to enter the judgment in the first instance.
Appeal No. 26, March T., 1930, by plaintiff from decree of C.P., Union County, May T., 1929, No. 103, in the case of Advance-Rumely Thresher Company, Inc. v. George B. Frederick.
Before TREXLER, P.J., KELLER, LINN, GAWTHROP, CUNNINGHAM, BALDRIGE and GRAFF, JJ. Affirmed.
Rule to strike off a judgment. Before POTTER, P.J.
The facts are stated in the opinion of the Superior Court.
The court made absolute the rule. Plaintiff appealed.
Error assigned was the order of the court.
Andrew A. Leiser, and with him Andrew A. Leiser, Jr., and Metzger Wickersham, for appellant. — When a judgment is entered by virtue of a warrant of attorney, no declaration is necessary: Rex v. Nelson, 15 Phila. Rep. 323; National Cash Register Co. v. Keystone Furniture Co., 3 Pa. D. C. Rep. 24.
Cloyd Steininger, and with him Cummings Gubin, for appellee, cited: Philadelphia v. Johnson, 23 Pa. Super. 591; Osterhout v. Briggs, 37 Pa. Super. 169.
Argued March 12, 1930.
George B. Frederick, the defendant, entered into what is commonly called a bailment lease with the plaintiff, dated February 15, 1929, under the provisions of which he was to receive a tractor and pay certain rentals for a period of twenty-one months, with the privilege of purchasing the machine for $1 at the expiration of the lease.
The lease contained the following clause: "If lessee shall fail or refuse to receive the goods above described and to settle for the hire thereof at the time and in the manner aforesaid, then in that event, lessee, jointly and severally, empowers any attorney or any prothonotary of any court of record in Pennsylvania to appear for him and with or without declaration, confess judgment against him and them (if more than one) in such court for the sum of eight hundred seventy dollars, payable one day after date, with costs of suit and five per cent, collection fees, waiving stay of execution, right of appeal, errors, inquisition and exemption laws."
On May 10, 1929, the plaintiff caused the judgment to be entered against the defendant by virtue of the above warrant of attorney. There was no allegation of default accompanying the entry of judgment and the lower court, upon application, struck it off. The action of the court forms the basis of the present appeal. The matter does not require extended discussion. There is an "if" in the above warrant which shows that there was a condition precedent to the entry of the judgment.
The case of Kolf v. Lieberman, 282 Pa. 479, to which the lower court refers is sufficient authority to sustain its action. It is there held that where, as in this case, the authority to enter judgment is dependent upon some act or omission of the defendant, before a valid judgment can be entered there must be an averment of such default or delinquency.
The argument urged by the appellant that the warrant above set out contains a release of all errors does not avail in this connection, for that applies only to errors in the proceedings. It does not affect the right of the defendant to question the lack of power to enter the judgment at all: Phila. v. Johnson, 23 Pa. Super. 591; s.c. 208 Pa. 645; Curry v. Bacharach Shops, 271 Pa. 364; Pittsburgh Terminal Coal Corp. v. Robt. Potts, 92 Pa. Super. 1, 13; Grakelow v. Kidder, 95 Pa. Super. 250, 258.
The judgment of the lower court is affirmed.