Mars National Bank v. Hughes , 243 Pa. 223 ( 1914 )

Opinion by

Mr. Justice Elkin,

When the first judgment was entered pro confess'o, the power of attorney was exhausted and the warrant became functus officio. After the entry of the first judgment, neither the court, the prothonotary, nor the attorney who confessed the judgment, had power to do any act which would have the effect of giving vitality to an exhausted power. This is a settled rule of law in Pennsylvania and has been recognized by our courts for a century. In recent years it was reasserted in Philadelphia v. Johnson, 208 Pa. 645; Com. v. Massi, 225 Pa. 548; Bellevue Boro. v. Hallett, 234 Pa. 191. As the record stands the first judgment, which was properly entered under the power of attorney, was merged in the second judgment which is clearly irregular and voidable at the instance of defendant. Plaintiff mistook its remedy when it filed a petition to amend the original declaration and confession of judgment. At that time the power had been exercised and the note reduced to judgment. For errors in the entry of the judgment,- or for the correction of clerical mistakes, application should have been made to the court to correct the original judgment to conform to the facts, but this was not done. The cases relied on by counsel for appellee relate to the correction of judgments by the court having jurisdiction of the same. In the present case the plaintiff in the court below asked, not for the correction of the judgment, but for an amendment of the warrant of attorney, to confess it. This could not be done because the power at that time was exhausted. After the amendment was allowed without notice to appellant, an amended declaration was filed and a second judgment was confessed on the original power of attorney. The second judgment so confessed and entered cannot stand against appellant when he asks that it be opened on the ground of being irregular and voidable. The amended declaration is in correct form and may be treated as a proper pleading in a suit brought on the note, but the amended confession of judgment must be deemed a nullity. In this state of the record the parties may proceed as if the suit were on an original note without a Avarrant of attorney to confess judgment. The defendant can make any defense available to him under the law. While the record is unsatisfactory in that the entry of the second judgment upon a poAver of attorney already exhausted was irregular and voidable, the amended declaration itself is sufficient to sustain an action on the note, and in our opinion this is the best disposition of the case in order that all parties may have an opportunity to be heard upon the merits.

Judgment reversed and directed to be opened with a procedendo.