Volkenand v. Drum , 143 Pa. 525 ( 1891 )

Opinion,

Mr. Justice Sterrett:

The judgment in question was entered by virtue of a warrant of attorney contained in defendant’s sealed note, of which the following is a copy:

“1750.00. Hazelton, April 1, 1888.

“ One year after date I promise to pay to the order of A. F. Volkenand seven hundred and fifty dollars, with sis per cent interest, without 'defalcation, value received; and, further, I do hereby empower any attorney of any court of record, within the state of Pennsylvania or elsewhere, to appear for me and confess judgment against me as of any term, for the above sum, with costs of suit, and attorney’s commissions of ten per cent for collection,” etc.

The note was filed, and judgment entered thereon by the prothonotary, August 24, 1886. In April, 1888, a rule to show cause why the judgment should not be opened and defendant let into a defence was granted, and afterwards made absolute. In June, 1890, on the trial of the issue, it was brought to the notice of the court that the date on the note was about eighteen months subsequent to the entry of the judgment, and thereupon a juror was withdrawn and the cause continued. A rule then granted to show cause why the judgment should not be stricken off and the issue dismissed, was afterwards made absolute. To that action of the court the plaintiff excepted, and took this appeal. The single question is whether the learned judge erred in holding that the judgment was void, and ordering it to be stricken from the record. We think he did.

The warrant of attorney was not dependent for its efficacy on the date placed at the head of the note. The purpose of that date was to designate the day of payment. The promise was to pay in one year from April 1, 1888. It might as well have been drawn so as to read, “ On the first day of April, 1889, I promise to pay,” etc. The note was evidently postdated. It was actually executed and delivered before the judgment was entered, but how long before does not appear. It cannot be doubted, as a physical fact, that the note was in plaintiff’s possession before he delivered it to the prothonotary. In the absence of any evidence to the contrary, it must be presumed that the note was executed and delivered to plaintiff, as evidence of an existing debt payable on a day certain in the then future, viz., in one year from April 1, 1888; and that the warrant of attorney was incorporated therein as a further measure of security, and for the purpose of facilitating collection of the debt after maturity. There is nothing on the face of the paper to indicate that the warrant was intended to be available only at a future time, or in the event of default, etc., as in the case of Stokely v. Robinson, 34 Pa. 316. On the contrary, the language employed shows that it was intended to become operative, at the pleasure of the payee, immediately on delivery. The error into which the learned judge fell was in assuming that it was inoperative prior to the date found on the note.

It has been suggested by the appellee that plaintiff is estopped from alleging error in the order striking off the judgment, because he acquiesced in the action of the court by subsequently withdrawing the note from the files, and entering judgment thereon anew. No such subsequent action of the plaintiff appears in this record; but, assuming that he did what is alleged, it would be a sufficient answer to say that he ought not to be prejudiced by a vain attempt to protect himself as best he could from the consequences of an erroneous order of the court. If • that order was unwarranted, as we think it was, the error cannot be condoned by plaintiff’s effort to protect himself against the possible consequences thereof.

The order striking off the judgment is reversed, and judgment reinstated.