Deibert v. Rhodes

91 Pa. Super. 23, 1927 Pa. Super. LEXIS 133

• Court: Superior Court of Pennsylvania
• Decided: March 7, 1927
• Docket: Appeal 17
• Status: Published

Opinions

Opinion by

Porter, P. J.,

Judgment was entered against the defendant in the court below by the prothonotary, upon the application of the original holder of a note which contained a warrant of attorney to confess judgment, which judgment was subsequently assigned to the Allentown National Bank. The defendant presented his petition to the court below praying that the judgment be stricken off upon the ground that the plaintiff and the prothonotary had failed to comply with the provisions of the first section of the Act of March 31, 1915, P. L. 39, in that he.had not presented to the prothonotary the certificate required by said section of the statute and no such certificate had been filed in the same number and term as the judgment. The court below granted a rule to show cause why the judgment should not be stricken off, and, it appearing from the record and the answer of the appellant that there had been a total failure to comply with the provisions of the Act of 1915, the rule was made absolute. The plaintiff appeals and assigns that action for error.

The authority of the prothonotary to enter judgment on the application of the holder against the maker of such a note as that involved in the present proceeding is statutory; Act of February 24,1806, 4 Smith’s Laws 278. It was entirely competent for the Legislature to repeal that law and thus take froln the prothonotary the power thereby conferred, or impose limitations upon the exercise of that power and prescribe conditions. concerning its exercise. The Legislature, by the Act of March 31, 1915, P. L. 39, limited the power or jurisdiction of the prothonotary to thus enter a judgment, by commanding ‘ ‘ That the prothonotary of each county is hereby directed not to enter any judgment unless the judgment creditor, or his duly authorized attorney or agent, produces to the prothonotary a certificate signed by the judgment creditor, or his duly authorized attorney or agent, setting forth the precise residence address of the said creditor. The certificate shall be filed at the same number and term as the judgment. ’ ’ This Act was ' clearly inconsistent with the provisions of the Act of 1806 and was an express limitation of the power conferred by the earlier statute. Under any of the accepted rules for the construction of statutes, the Act of 1915 was made mandatory. The limitation of the authority of the prothonotary to enter such a judgment was more than a mere direction, it contained words of positive prohibition. The authority of the prothonotary to enter the judgment being statutory and the Act of 1915 imposing limitations upon the exercise of the power, the officer was without authority to enter the judgment when the plaintiff failed to comply with the provisions of the later statute: Bladen v. Philadelphia, 60 Pa. 464; Norwegian Street, 81 Pa. 349; Harris v. Mercur, 202 Pa. 313; McQuiston’s Adoption, 238 Pa. 304; Mauer v. Brennan, 58 Pa. Superior Ct. 587. The judgment having been entered by the prothonotary in violation of the express prohibition of the statute, the court did not err in striking it from the record.

July 8, 1927:

The order is affirmed.