Appeal, No. 218, Jan. T., 1961, from order of the Court of Common Pleas No. 1 of Philadelphia County, Dec. T., 1959, No. 1754, in case of Catherine M. Roche v. William J. Rankin. Record remanded with directions.
Marlyn F. Smith, with him James F. McMullan, Jr., and Clark, Ladner, Fortenbaugh & Young, and High, Swartz, Roberts & Seidel, for appellant.
Herman Lang Sundheim, for appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and Alpern, JJ.
OPINION BY MR. JUSTICE EAGEN
This is an appeal from an order of the court below refusing to strike from the record or in the alternative to open a judgment entered by virtue of an agreement authorizing a confession of judgment.
On August 11, 1952, the appellant, William J. Rankin, and the appellee, Catherine M. Roche, entered into an unusual written agreement to compromise and adjust certain differences existing between them. By the terms of the agreement, Roche was to be paid the sum of $5000 without interest, upon the date of Rankin's death, or earlier during his lifetime if he so preferred. Rankin further agreed to place in trust certain life insurance policies as security for the payment of the $5000, which policies were to be kept in force, unencumbered and with trust beneficiary unchanged. If the provisions of the agreement, in respect to the insurance policies, were not fulfilled, the $5000 would forthwith become due and payable. If Roche predeceased Rankin, all rights in favor of Roche would immediately terminate. In the event of any default by Rankin in the terms of the agreement, he therein authorized any attorney to appear for him and confess judgment against him "for the amount due" under the agreement.
On June 20, 1960, Herman L. Sundheim, an attorney, entered an appearance on behalf of the plaintiff, Roche, filed the agreement and an averment of default with the prothonotary, alleging lapse of the life insurance policies covered by the agreement through failure to pay a premium due, and requested the prothonotary to enter judgment in favor of Roche and against Rankin, and to assess damages in the amount of $6195. This sum included interest from January 1, 1956. This, the prothonotary did, without any appearance entered on behalf of Rankin.
In Noonan, Inc. v. Hoff, 350 Pa. 295, 298, 299, 38 A.2d 53 (1944), this Court said: "There are two methods by which a warrant of attorney to confess judgment may be utilized in order to accomplish its purpose. One is through the medium of the Act of 1806. In avoiding the necessity of having an attorney appear for the obligor in cases where the amount due appears on the face of the instrument the purpose of that act was to exempt the obligor from the payment of an attorney's fees: Helvete v. Rapp, 7 S. & R. 306. The second method is that of defendant himself, or an authorized attorney on his behalf, confessing the judgment; this practice was in use from the earliest times and long before the passage of the Act of 1806: Cooper v. Shaver, 101 Pa. 547, 549; see also Cook v. Gilbert, 8 S. & R. 567; M'Calmont, Administrator, v. Peters, 13 S. & R. 196." See also, Kros v. Bacall Textile Corp., 386 Pa. 360, 126 A.2d 421 (1956).
The plaintiff, Roche, selected the first method and proceeded under the Act of February 24, 1806, P.L. 334, 4 Sm.L. 270, § 28, as amended, 12 P.S. § 739 (Supp.). This statute makes it the duty of the prothonotary on the application of any person being the original holder (or assignee of such holder) of a note, bond or other instrument in writing, in which judgment is confessed, or containing a warrant of an attorney-at-law, or other person to confess judgment, to enter judgment against the person or persons, who executed the same for the amount, which from the face of the instrument, may appear to be due, without the agency of an attorney, or declaration filed. This act, it has been stated, was "evidently adopted to enable a creditor to obtain a ...