Salus v. Curzon , 1919 Pa. Super. LEXIS 196 ( 1919 )

Opinion by

Henderson, J.,

The defendant gave to tbe plaintiff a judgment promissory note for $300, payable in ninety days from date. Tbe obligation contained tbe usual warrant of attorney authorizing an attorney of any court of record of Pennsylvania or elsewhere to appear for tbe defendant and confess judgment against him for tbe amount of tbe debt with costs of suit release of érrors without stay of execution, and with six per cent added for collecting fees. Tbe note was filed in tbe protbonotary’s office and a judgment entered thereon under tbe authority conferred by tbe Act of February 24, 1806. Tbe act authorizes tbe prothoriotary to enter judgment on an obligation against tbe person who executed tbe same “for tbe sum, which from tbe face of tbe instrument may appear to be due.” Tbe appellant made an application to tbe court to strike off or open tbe judgment and permit him to make a defense. A rule was granted thereon and on tbe argument tbe court treated tbe application as tbe basis for two rules;"one to strike off, and tbe other to open tbe judgment, tbe latter rule being founded on an allegation in tbe petition of an equitable defense. Tbe contention of tbe appellant on tbe rule to strike off tbe judgment is that tbe statute authorizing tbe prothonotary to enter judgment only applies to obligations which are presently payable and to those on which a sum certain is expressed in tbe instrument. Tbe amount payable on tbe note in question is said to be indefinite because of tbe clause providing for tbe payment of six per cent for collecting fees, and tbe judgment having been entered before tbe maturity of tbe paper it is said nothing appeared to be due from tbe face of tbe instrument at that time. We agree to tbe conclusion of tbe learned judge of tbe court below that tbe word “due” in tbe statute relates to tbe sum of the debt. It is undoubtedly true that the word has two meanings as applied to obligations to pay; it sometimes expresses an immediately demandable indebtedness, and at other times an obligation to pay in the future, and the latter sense is that in which the term is generally used. It is said in Roberts v. Beatty, 2 P. & W. 63, “The meaning of due is owe. It is so understood in common parlance.” In Fulweiler v. Hughes, 17 Pa. 447, the court said “It is useless to cite instances to show that the word “due” as continually used by judges, legislators and lexicographers is synonymous with ‘owing.’ ” The word was construed in the same sense in U. S. v. The Bank of North Carolina, 6 Peters 36. To the same effect are: National Bank v. Carle, 131 Cal. 409; Life Insurance Co. v. Board of Equalization, 74 Iowa 178; Mason v. North, 67 Maine 546. There-is nothing to suggest that it was not the intention of the maker to give the payee the benefit of the security afforded by the warrant of attorney. While the note was payable at a future time, the authority to enter the judgment could be immediately exercised under the express language of the instrument. The intention was to give the payee the protection which a judgment might afford and facilitate the collecting of the debt at maturity. The question was decided in Volkenand v. Drum, 143 Pa. 525. There the judgment was entered by the prothonotary before the maturity of the obligation, and the note contained a provision for the payment of a collection fee of ten per cent. The judgment was held to be regularly entered. It is to be noted that the judgment in the case now under consideration was only entered for the face of the note. The collection fee was not liquidated in the judgment. It is in the nature of a penalty and subject to the control of the court: Daly v. Maitland, 88 Pa. 384. If the authority of the prothonotary in such cases is limited to obligations which are overdue, none of the instruments of that large class in which provision is made for partial payments could be entered under the statute. It has been the common understanding of courts and lawyers for more than one hundred years in the Commonwealth that the statute applied to such obligations, and it is now too late to contend for a different interpretation of the law.

We are not convinced that the learned judge was in error in discharging the rule to open the judgment. A controversy of fact was raised by the conflicting evidence, and there is not sufficient support to the allegations of the appellant to convince us that there was an abuse of discretion in the disposition of the case.

The appeals are dismissed and the decrees affirmed at the cost of the appellant.