Appeals, Nos. 93 and 94, March T., 1954, from orders of Court of Common Pleas of Alleghency County, July T., 1953, Nos. 1478 and 1479, in cases of Horner Sales Corporation v. Motor Sport, Inc. and Robert G. Ryberg and E. E. Horner v. Same. Orders reversed; reargument refused June 4, 1954.
Elizabeth Bailey, with her James C. Tallant, for appellants.
Allen N. Brunwasser, for appellees.
Before Stern, C.j., Stearne, Jones, Bell, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE ARNOLD
This action involves a confession of judgment upon warrants of attorney contained in judgment notes. On May 15, 1953, judgment was confessed in favor of Horner Sales Corporation, plaintiff, against Motor Sport, Inc., maker, and Robert G. Ryberg, endorser, of a judgment note dated November 8, 1952. The note contains a warrant of attorney to confess judgment, both on its face and in the endorsement. This judgment was assigned by Horner Sales Corporation to E. E. Horner. On the same day, to wit May 15, 1953, judgment was confessed on another note in favor of E. E. Horner, plaintiff, against Motor Sport, Inc., maker, and Robert G. Ryberg, endorser. This note also contained on its face and in the endorsement a warrant of attorney to confess judgment.
Rules were entered on E. E. Horner to show cause why the said judgments should not be stricken from the record. The court below made these rules absolute, and from these orders E. E. Horner appeals. The issues involved in the two cases are identical and will be disposed of in one opinion. The question is: Does the confession of judgment in one action against both the maker and endorser of a note, containing on its face and in the endorsement a warrant to confess judgment, invalidate said judgment?
Prior to 1933 a judgment confessed against the maker and endorser of a judgment note on two separate warrants of attorney, was held void by both appellate courts of Pennsylvania, the reason being that the maker and the endorser could not be sued in the same action, they not being joint, but several, obligors.*fn1
Section 1 of the Act of May 25, 1933, P.L. 1057, 12 PS § 151 (commonly referred to as the Written Obligations Act) provided: "Any person having a right of action on a written instrument of any kind whatsoever, except one creating a purely joint obligations, may, at his option, join as defendants in a single action thereon all or any one or more persons alleged to be severally, jointly or severally, or jointly and severally liable to him upon such instrument, regardless of the capacities in which such defendants are respectively liable thereon, and whether or not all or any of them be makers, drawers, acceptors, indorsers, assignors, sureties, guarantors, or accommodation parties..." These provisions were suspended absolutely by Pa. R.C.P. 2250.
Section 1 of the Act of 1933 was adapted by Pa. R.C.P. 2229 (d), which provides as follows: "A person who asserts a cause of action ex contractu may join as defendants all or any one or more persons alleged to be liable to him on or by reason of ...