Opinion
November 13, 1930.
January 30, 1931.
Judgments — Confession of judgment on bond accompanying mortgage — Rule to strike off — Discretion of court — Abuse.
It is not an abuse of discretion for a court to refuse to strike off a judgment entered against a husband and wife pursuant to a warrant of attorney in a bond accompanying a mortgage, where the depositions taken on the rule show that defendants executed and delivered to their attorney the bond and mortgage on real estate owned by the wife and directed him to pay the proceeds realized to a third person, who executed and delivered to the defendants his judgment note in the amount of the mortgage, both defendants being named as payees therein.
Appeals Nos. 354 and 355, October T., 1930, by defendants from judgment of C.P., Lancaster County, August T., 1929, No. 660, in the case of Harvey B. Lutz, trustee, to the use of A.B. Cohn, to the use of The Lancaster County National Bank, now to the use of A.B. Cohn, v. Mary Voulopos and Stergos Voulopos.
Before TREXLER, P.J., KELLER, LINN, GAWTHROP, CUNNINGHAM, BALDRIGE and WHITMORE, JJ. Affirmed.
Rule to strike off a judgment. Before LANDIS, P.J.
The facts are stated in the opinion of the Superior Court.
The court discharged the rule. Petitioners appealed. Error assigned, among others, was the order of the court.
K.L. Shirk, for appellants.
G.T. Hambright, and with him John E. Malone, for appellee.
Argued November 13, 1930.
Appellants are husband and wife. On their petition to stay execution and strike off judgment, the court granted a rule to show cause why the judgment entered pursuant to warrant of attorney executed by them should not be opened, and defendants permitted to defend, levy to remain. A responsive answer was filed; depositions were taken; after hearing, the court discharged the rule. The following facts may be inferred from the evidence. Appellants executed and delivered a mortgage and bond to their attorney to secure a loan of $1500 to be obtained by him for the bond and mortgage; the title to the real estate mortgaged was in the wife; they also directed their attorney, by writing signed by both, to pay the proceeds of the mortgage to one Skyllas; for the money so received by Skyllas, he executed and delivered to appellants his judgment note in the same sum as the mortgage, both being named in the note as payees. As the record states that there is other litigation growing out of the transaction, we shall not discuss the evidence in detail. The inquiry here, is, was there abuse of discretion in discharging the rule? Our consideration of the record leads to the same conclusion reached below.
The order appealed from is affirmed.