Stewart v. Jackson , 181 Pa. 549 ( 1897 )

Opinion by

Mr. Justice Fell,.

The plaintiff in this action of ejectment leased two hotel, properties to W. P. Jackson, one of tire defendants, for nine months from April 1, 1891, with an agreement that if tile lessee held over after the expiration of the term he should become a tenant £ró,ia- year to,year. J. G. Lawson, another of. tbe de~ fendants and the appellant in tins case, soon after the execution of tbe lease, entered into exclusive possession of one of the hotels, witb tbe knowledge and consent of tbe lessor, but whether under an agreement witb him or as a subtenant of Jackson is in dispute. Tbe lease, which covered both hotels, contained a provision for entering an amicable action of ejectment witb power of attorney to confess judgment in favor of tbe lessor and against tbe lessee or any subtenant, in tbe event of tbe nonpayment of tbe rent as it fell due. In February, 1892, an amicable action of ejectment was entered against Jackson, tbe lessee, Lawson, who occupied one of tbe hotels, and T. M. Mitchell, who occupied the other. Judgment was confessed against all three defendants by virtue of tbe warrant of attorney contained in tbe lease, which was signed by Jackson only, and an habere facias possessionem witb a fieri facias for costs was issued against all three. Tbe breach alleged was Jackson’s failure to pay tbe rent reserved. On tbe application of Lawson a rule was granted to show cause why tbe judgment against him should not be struck off, which after hearing was discharged. Tbe assignments of error relate to tbe order of tbe court discharging tbe rule.

We have then a judgment entered against three defendants on a warrant of attorney signed by one of them only. The only ground on which it is attempted to sustain tbe judgment against Lawson is that be was a subtenant and bound by tbe terms of tbe lease. It is true that if he was a subtenant be was subject to tbe terms- of tbe lease between bis lessor and tbe owner, and be could have been ejected by proceedings on a judgment entered against Jackson. -There was full authority for entering a judgment against Jackson, and its enforcer, ment would have turned out of possession every one claiming under him, but we find no' authority for entering a judgment against Lawson. He bad not signed the warrant of attorney, and bis coming in as a subtenant gave no one authority to confess judgment against .him. A judgment by confession must be self-sustaining on tbe record, and as -there is nothing on this record to sustain a judgment "against Lawáon the rule to strike it off should have been made absolute.

'' Tbe order of the court of December 8, 1894, is reversed, and tbe rule to show cause why tbe judgment entered against J. G-; Lawson should not be struck off is made -absolute.