Defendant attacks the irregularity of the entry of judgment on a number of grounds which require some comment. The first of these is that the procedure by which a judgment is entered by confession may not be employed in the federal courts since it does not conform to the procedure prescribed by the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c. This contention has considerable persuasiveness, since it would certainly be in furtherance of the purpose of those rules to effect uniformity of procedure. But the scope of the rules is specified in Rule 1 to govern procedure "in all suits of a civil nature" in the federal courts. The right to enter judgment upon a confession contained in an instrument is a common-law right which may be exercised without the necessity of suit, i.e., service of process, pleading and judicial determination. Shure v. Goodimate Co., Inc., 302 Pa. 457, 153 A. 757; 34 C.J. 104. Since the Federal Rules of Civil Procedure are applicable only to "suits of a civil nature", they do not appear to preclude the exercise of a right to enter judgment by confession without the necessity of suit.
A second ground urged by the defendant is that the record does not disclose that the attorney who entered his appearance for him and confessed judgment against him was an attorney of this court. Assuming that this was required by the warrant of attorney, this defect would at most render the judgment voidable only, and judicial notice may be taken of the fact that the attorney in question is a member of the bar of this court. On this question see also Shure v. Goodimate Co., Inc., supra.
The remainder of the matters urged by the defendant with respect to the irregularity of the proceedings employed by the plaintiff are unquestionably valid. Defendant contends that the judgment is void because it was entered without the filing of an affidavit under the Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S.C.A.Appendix, § 501 et seq., and without compliance with Rule XXIX of the Rules of the District Court for the Eastern District of Pennsylvania, which rule provides: "If a warrant of attorney to enter judgment be above ten years old, and under twenty, the court, or a judge thereof, must be moved for leave to enter judgment; which motion must be grounded on an affidavit of the due execution of the warrant, that the money is unpaid and the party living; but if the warrant be above twenty years old there must be a rule to show cause, and that must be served on the party, if he is to be found within the Stat."
With respect to the attachment, defendant points out that it was issued on the very day judgment was entered in direct violation of Rule 62 of the Federal Rules of Civil Procedure, which states in part: "Except as stated herein, no execution shall issue upon a judgment nor shall proceedings be taken for its enforcement until the expiration of 10 days after its entry."
Plaintiff's entry of judgment prior to the filing of an affidavit as required by the Soldiers and Sailors Civil Relief Act of 1940, its failure to comply with Rule XXIX of this court, its assessment of damages in the sum of $101,025.98, a sum demonstrated by the evidence to be vastly in excess of any balance claimed to be due, and the issuance of an immediate attachment in violation of Rule 62 of the Federal Rules of Civil Procedure can be neither justified nor condoned. Nor is it in any way mitigated by the concession at the outset of the brief that "Plaintiff here seeks to recover nothing beyond the unpaid balance of the original $80,000.00 loan, to wit, $28,500.00, plus interest and costs, and plus some items constituted by payment of taxes on the collateral real estate held by plaintiff's predecessors. To that end, the plaintiff is perfectly willing to reduce the assessment of damages accordingly." Nor does it avail plaintiff to argue that the evidence at the hearings on the present motion discloses that the defendants were not in military service, that there was a debt justly due and owing, and that the debtors are still alive. It cannot flatly disregard statutes of the United States and the rules of this court to enter judgment far in excess of the amount actually due and to issue an attachment thereon and then seek to have the court waive strict compliance therewith.
There remains, therefore, the question of how the further proceedings in this court may be most expeditiously handled. In this opinion I have considered defenses of the defendant to his substantive liability for the balance of the original debt, rather than merely the defects in the entry of the judgment, for the reason that if plaintiff should subsequently enter a judgment in this matter regularly, defendant would again raise these substantive defenses in a new motion to vacate the judgment, and there is no reason why the time of the court hearing that motion should be taken up with the reception and consideration of the large volume of evidence adduced before me relating to these defenses.
The motion of the defendant Steinman to vacate the judgment against him is granted, with leave to the plaintiff to file a motion for entry of judgment under Rule XXIX, setting forth the amount it claims as the balance due, and to the defendant to file an answer thereto, the amount of damages then to be fixed by the court.
The motion of the defendant Lesse to vacate the judgment against him is granted.