Appeal, No. 89, Jan. T., 1963, from order of Court of Common Pleas of Luzerne County, July T., 1959, No. 956, in case of Union Savings & Loan Association of Hazleton v. Carlos C. Bell, Esther Conety Bell, his wife, and Mary P. Moylan. Order affirmed; reargument refused December 30, 1963.
George L. Fenner, Sr., for appellants.
Conrad A. Falvello, with him Rocco C. Falvello, for appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.
OPINION BY MR. JUSTICE ROBERTS
This appeal is from the refusal to strike a judgment entered on an appeal bond and from the discharge of a rule to compel plaintiff to bring action against the defendant-surety to determine costs and damages legally payable.
Union Savings and Loan Association of Hazleton,*fn1 plaintiff-appellee, entered a judgment by confession on a real estate mortgage bond against Carlos C. Bell and Esther Conety Bell, his wife, in the sum of $33,000, conditioned for the payment of $10,058.68, legally due as of May 1, 1959. Subsequently, a rule was granted
upon plaintiff to show cause why the judgment should not be opened and defendants let into a defense. This rule was discharged, and defendants in that proceeding filed an appeal in the Superior Court.
In order to the have that appeal act as a supersedeas, appellants, on March 2, 1961, executed an appeal bond in favor of the use-plaintiff, in the principal sum of $24,000, double the amount of the judgment and all costs accrued and likely to accrue. The condition of the bond was "that if the said Appellant will prosecute this Appeal with effect, and will pay all costs and damages swarded by the Appellate Court, or legally chargeable against them, then this obligation [is] to be void; otherwise to remain in full force and virtue."
The appeal bond was approved by the court below on March 3, 1961, and filed of record on March 7, 1961. The appeal to the Superior Court was filed on March 6, 1961, but was withdrawn without hearing or argument and discontinued on February 8, 1962. On March 13, 1961, appellee filed exceptions to the appeal bond principally because the bond, being on real estate, failed to state the location of the surety's real estate. This exception was dismissed, and the court below directed the prothonotary to enter judgment on said bond both against the principals and surety. There is nothing on the record to indicate that appellants objected to the entry of judgment on the appeal bond at that time.
After the appeal was withdrawn, appellee commenced execution proceedings, naming the surety and others as garnishees. To these proceedings a petition was presented seeking to strike the judgment entered (a year earlier) on the appeal bond and also to compel appellee to proceed against the surety to ascertain legal liability on the bond. After argument, both the petition to strike and ...