Manufacturers & Mechanics' Bank v. St. John — 5 Hill & Den. 497

Majority

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The Manufacturers and Mechanics’ Bank of the Northern Liberties in the Co. of Philadelphia vs. St. John.

Headnote

Though the costs of a judgment upon bond and warrant of attorney are taxed without a sufficient affidavit being presented to the taxing officer of the amount due by the condition of the bond, this is not a ground for setting aside the judgment, but only for ordering a re-taxation.

Nor will the judgment be set aside beoause the warrant of attorney was not placed on file with the clerk of the court at the time of perfecting judgment, provided it was then before the clerk, having been previously filed in his office.

If the judgment be entered up after a year and a day from the date of the warrant, without an order obtained for that purpose, it will be set aside as irregular.

Within ten years from the date of the warrant, the order may be made either by the court or a judge at chambers; but after that time it can only be made by the court. Per Bronson, J.

After twenty years from the date of the warrant, the order will not be made unless notice be given of the motion; and so, semble, after ten years. Per Bronson, J.

In all cases where an order is necessary, there must be an affidavit proving that the warrant was duly executed, that the debt or some part of it is still due, and that the parties are alive. Per Bronson, J.

An authority to confess judgment without process must be clear and explicit, and must be strictly pursued.

Where a bond and warrant of attorney were executed by two persons residing in Pennsylvania, and another residing in New-Jersey, and the warrant was addressed thus: “ To J. D. S., Esqr., attorney of the court of common pleas at Philadelphia &c., or of any other court there or elsewhere, or to any prothonotary of any of the said courtsHeld, not an authority for entering up judgment in this state.

Semble, that a warrant of attorney signed by three persons, conferring power to appear for them and each of them, in an action to be brought against them and each

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of them, and to confess judgment against them and each of them, will not authorize a separate judgment against one, but only a joint judgment against all; and this, though the bond referred to in the warrant be joint and several. Per Bronson, J.

Judgment on bond and warrant of attorney. The warrant of attorney bore date April 16th, 1841, and was executed by Cow-den, Boyd and the defendant St. John. The bond was joint and several. The substance of the warrant of attorney is stated in 3 Hill, 461 . After the judgment there mentioned had been set aside, and on the 28th of April last, the plaintiffs entered another judgment by virtue of the bond and warrant against St. John alone. This was entered without any order of the court or a judge, and without any affidavit showing that the warrant was duly executed, that the defendant was living, or that the debt or any part of it was still due. An affidavit of the plaintiffs’ attorney was laid before the officer who taxed the costs, stating “ that the amount due by the condition of the bond is sixteen • thousand dollars, with interest, as he is informed and verily believes to be true,” This affidavit the attorney intended to file on perfecting the judgment, but omitted to do so through inadvertence. All the necessary papers were made out in the same manner as though St. John was the only party to the bond and warrant, except that oyer, or a true copy of the bond was filed. The warrant of attorney was filed in this court when the former judgment was perfected, in October 1841, and the same was presented to the clerk, or referred to by him on the files at the time he signed the present judgment.

S. Sherwood, for the defendant,

moved to set aside this judgment as irregular and unauthorized.

J. W. Edmonds, contra.

Upon taxing costs where the judgment is on a bond or instrument having a penalty, an affidavit of the plaintiff or his attorney must be produced, specifying the amount due by the condition thereof. (2 R. S. 653, §

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6; id. p. 618, § 30.) If the affidavit presented to the taxing officer in this case was defective, or if there was an error in not filing it, that would not he a sufficient ground for setting aside the judgment; but only a ground for ordering a re-taxation of costs.

On entering judgment by confession, where no action is pending, the authority of the attorney must be produced to the officer signing the judgment, and filed with the clerk of the court at the time of the filing and docketing of such judgment. (2 R. S. 360, § 9.) The warrant of attorney was before the clerk at the time he signed the judgment; and having at a previous period been filed with the clerk and still remaining in his custody, it was in effect filed at the time this judgment was docketed. It was left, and still remains among the records of the court for the inspection of any one who may feel an interest in the matter. All has been done which the statute was designed to accomplish, and this objection cannot prevail.

Within a year and a day from the date of the warrant of attorney, judgment may be entered without obtaining any order for that purpose; but after that period has elapsed, there must be an order. Within ten years from the date of the warrant the order may be made either by the court or a judge at chambers. After ten years it can only be made by the court; and after twenty years it will not be made unless notice has been given of the motion. I am inclined to the opinion that there should be notice after ten years; but that point need not now be considered. Whenever an order is necessary—and it is necessary in all cases after the lapse of a year and a day—there must be Qan affidavit proving the due execution of the warrant of attorney, that the debt or some part of it is still due, and that the parties are alive. (Lushington v. Waller, 1 H. Black. 94; Anon., 6 Mod. 212; Oades v. Woodward, 7 id. 93; 3 Salk. 322, pl. 10; - v. Hobson, 1 Chit. Rep. 314, and note; 1 Tidd, 599 and 492 note, Phila. ed. of 1828; Grah. Pr. 774.) This warrant of attorney was more than two years old at the time the judgment was entered, and there was neither any such affidavit as has been mentioned, nor was- there any

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order of the court or a judge giving leave to enter the judgment The proceeding was irregular, and the judgment must he set aside.

This is enough to dispose of the motion; hut if we do not pass upon the broader question which has been twice made between the parties, (see 3 Hill, 461 ,) we shall have them here again.

The authority to confess a judgment without process must be clear and explicit, and must be strictly pursued. If the parties to this warrant of attorney intended to authorize a judgment in any other state than Pennsylvania, which is very questionable, I think they did not intend that a judgment should be entered in this state. Both the bond and the warrant describe two of the obligors as residents of the state of Pennsylvania, and the third as a resident of New-Jersey. The warrant is addressed " to John D. Smith, Esq,, attorney of the court of common pleas at Philadelphia, in the county of Philadelphia, in the state of Pennsylvania, or to any other attorney of the said court or of any other court there or elsewhere, or to any prothonotary of any of the said courts.” The only thing which can carry the power beyond the courts “at Philadelphia” is the word “ elsewhere;” and although if the parties had stopped there the authority might have extended to our courts, the scope of the word “ elsewhere” is restricted by the words which immediately-follow it—“ of to any prothonotary of any of the said courts.” This shows that the parties were speaking of such courts as had an officer called a prothonotary,” and such courts only. The Pennsylvania courts have an officer of that name, but we have not. How it may be in New-Jersey, where one of the obligors resides, I am unable to say. We think the warrant does not authorize the confession of a judgment in this state.

Although the bond is joint and several, I am strongly inclined to the opinion that the warrant will only authorize a joint judgment against all the obligors. The power is, “ to appear for us and each of us” in an action of debt “to be brought against tis and each of us,” and to confess judgment “ against us and each of us.” If the parties intended to authorize a several judgment against each obligor, they have been unfortunate in

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the choice of language to express their meaning. (See Gee v. Lane, 15 East, 592; Raw v. Anderson, 7 Taunt. 453.) But the last point which we have decided renders it unnecessary to dispose of this question.

Motion granted.