Summary
In Jordan v. Kirschmer, 94 Pa. Super. 252, it was held that a "Judgment entered pursuant to a warrant of attorney contained in a lease authorizing the confession of judgment in case of default, was properly stricken off where no averment of default was filed.
Summary of this case from Harwood v. BruhnOpinion
April 10, 1928.
July 12, 1928.
Judgments — Striking off — Warrant of attorney — Lease — Authority to confess judgment — Necessity of allegation of default.
Judgment entered pursuant to a warrant of attorney contained in a lease authorizing the confession of judgment in case of default was properly stricken off where no averment of default was filed.
In entering judgment on a warrant of attorney the authority thereunder must be strictly followed or the judgment cannot be sustained, and when the warrant authorizes an attorney of record to enter judgment after default and no averment of default is filed, the record is defective.
Appeal No. 48, April T., 1928, by plaintiff from judgment of C.P., Erie County, No. 688, February T., 1926, in the case of George E. Jordan v. H.C. Kirschner.
Before PORTER, P.J., HENDERSON, TREXLER, KELLER, LINN, GAWTHROP and CUNNINGHAM, JJ. Affirmed.
Motion to strike off judgment entered upon a warrant of attorney contained in a lease. Before ROSSITER, P.J.
The facts are stated in the opinion of the lower court which follows:
Upon reargument of the motion to strike off the judgment entered in the above entitled case we are of the opinion that the motion should be granted. We believe that this case is controlled by Kolf v. Lieberman, 282 Pa. 479. While the rule stated there is not new, the fact that there was no averment of a default which would authorize the entry of judgment was not called to our attention at the former argument. It has long been the law that in entering judgment on a warrant of attorney the authority given thereunder must be strictly followed or the judgment cannot be sustained and when the warrant authorizes an attorney of record to enter judgment after default and no averment of default is filed and no indication tending to establish such delinquency, the record is defective. In the case at bar it was necessary before a valid judgment could be entered to file an averment setting forth in what respect a default had occurred. The plaintiff was only authorized to enter judgment on failure to pay rent due, or failure to keep all the covenants of the lease, or failure to remove from the premises at the termination of the same. Then lessor at his option might enter judgment in an amicable action of ejectment upon which he was authorized to issue a writ of habere facias possessionem with a clause of fi. fa. or enter a judgment for the amount of the rent for the entire term. Here there is no averment in the narr in assumpsit or confession of judgment of any default covenanted against in the lease and there being no averment of such delinquency filed the record is therefore defective and the judgment should be and it is now, April 11th, 1927, stricken off without prejudice to the right to bring suit on the lease.
Rule absolute and judgment stricken off. Plaintiff appealed.
Error assigned was the order of the court.
Henry C. Baur, for appellant. — Where a lease authorizes the confession of judgment in case of default in payment of rent, judgment may be entered without an affidavit of default: Kahn v. Harlan, 55 Pa. Super. 568; Kirch v. Crawford, 61 Pa. Super. 288; Montelius v. Montelius, Brightly N.P. 79.
Franklin B. Hosbach, and with him Miles R. Nason, for appellee. — Judgment entered upon a warrant of attorney in a lease, without an averment of default, is irregular and void: Kolf v. Lieberman et al., 282 Pa. 479.
Argued April 10, 1928.
The order is affirmed on the opinion of President Judge ROSSITER, of the court below.