Bates v. Cullum , 163 Pa. 234 ( 1894 )

Opinion by

Mb. Justice Gbeen,

There is no question at issue here except the right of the court below to open the judgment. There was no trial on the merits after the rule to open was made absolute, and it is certainly a serious question whether an appeal can be taken at this stage of the proceedings, there being no final judgment. This question is not raised however by a motion to quash or in any other manner. It is not possible to consider now the other subjects which are discussed in the paper-books, as there is nothing to bring them on the record. The question whether the court of common pleas may open a judgment which has been entered upon an obligation not under seal after the expiration of six years from its maturity, is res adjudicata. It was positively decided in several of our modern cases, and had been substantially determined many years prior to either of them: Herman v. Rinker, 106 Pa. 121; Sossong v. Rosar, 112 Pa. 197; Ellinger’s Appeal, 114 Pa. 505.

In the present case the defendant’s obligation was an ordinary promissory note dated November 10,1873, payable at one day after date, with an authority to any attorney to confess judgment for the amount of the note. It was not under seal. There was no judgment entered on the note until June 2,1881, more than seven years after its maturity. Other matters of defence were alleged in the defendant’s petition, but the court, in the order opening the judgment and granting an issue, prohibited any other plea than the statute of limitations, and thereupon the plaintiff took the present appeal without going.to tidal.

In Herman v. Rinker, supra, we held that it is within the discretion of the courts of common pleas to open a confessed judgment entered upon a judgment noté, not under seal, for the purpose of permitting the statute of limitations to be pleaded thereto.

In Sossong v. Rosar, a judgment was entered upon a judgment note not under seal, without terms being imposed by the court below. We held not only that the judgment might be opened, but that, on the trial, any defence could he made Which could have been made if the action liad been brought upon the original instrument, without the powpr of attorney to confess judgment. We recognized the propriety of the ruling in Herman v. Rinker, that a judgment by confession might be opened for the very purpose of letting in the plea of the statute of limitations, and said: “ We held it was a matter in the discretion of the court below in any.event, and we could see no error in opening the judgment. A very sufficient reason lies in the fact that the defendant has had no hearing. When judgment is entered by confession, and, if upon the face of the obligation containing the authority to enter judgment it appears that tlie statute was a bar to the debt when the judgment was entered, it follows'that the defendant has had no opportunity to present a perfectly lawful and proper defence.”

That is this case precisely. On the face of the judgment note it appears that the judgment was entered at a time when the statute was a bar to the debt. That being so it follows that the defendant lias had no day in court when he might plead 'the bar of the statute. He is therefore entitled to be heard on that subject.

In Ellinger’s App., we held that it is a good cause for opening a judgment and letting a defendant into a defence, that at the time of the entry of the judgment on a judgment note, it was prima facie barred by the statute of limitations.

The foregoing, cases completely cover the present contention. The appellant seems to think that Woods v. Irwin, 141 Pa. 278, is in conflict with these decisions, but that is an entire mistake. There is nothing in that case that interferes in the least with the matters decided in the cases cited.

The order made by the court below is affirmed and the appeal dismissed at the cost of the appellant.

Ms,. Chief Justice Sterrett and Mb. Justice Mitohelr dissent.