Whitney v. Hopkins

Opinion,

Mr. Justice Williams:

The learned counsel for the appellant is right in the general proposition on which he rests his appeal. The prothonotary of the Court of Common Pleas is merely the clerk of the court. He has no authority, virtute officii, to act as the clerk, agent, or attorney of any person. It is his duty to record upoh the minutes of the court all judgments rendered by or confessed before the court whose clerk lie is. Tf he is not personally present, the court may direct any competent bystander to make the entries upon the record; for the legal effect of such entries does not depend upon the person by whom they may be copied or recorded, but upon the jurisdiction of the court whose acts they are. It is also the duty of the prothonotary to enter, by himself or his clerks, on the records of the court, any amicable action entered into in writing, and filed in his office, when the court is not in session. He may also note the confession of judgment in such action by the defendant. This he does simply as the clerk and keeper of the records of the court in which the parties agree that their action shall be entered : Cook v. Gilbert, 8 S. & R. 567. He has no authority in the premises, and no duty to discharge except to put faithfully into the records of the court what the parties have agreed shall go there. As an individual, he may be authorized to act for another in the same manner that any other person may be ; and, when so authorized, his powers are derived from the instrument under which he acts, and not from his office. His commission as prothonotary gives him no right to act as attorney in fact or at law for suitors or others, and imposes no duties except such as grow out of his relations to the court as its clerk. To justify him in acting for suitors, an express authority must be shown, coming either from the person to be affected by his acts, or from an act of the general assembly. By the act of February 24, 1806, it was made the duty of the prothonotary of any court of record within the commonwealth, on the application of the holder, to enter judgment on any note, bond, or other instrument of writing in which judgment is confessed by the maker, or which contains a warrant of attorney for an attorney at law or other person to appear and confess judgment thereon. The act directs that the judgment be entered against the person or persons who executed the instrument, and for the amount which, from the face of the instrument, may appear to be due thereon. If the amount due cannot be ascertained from the face of the instrument, the prothonotary cannot enter judgment upon it, for the act of 1806 gives him no power to inquire beyond: Connay v. Halstead, 73 Pa. 354.

The instrument on which the judgment in this case was entered is a contract bearing date the 9th April, 1884, by which the plaintiff sold to the defendant a farm for $4,500. This amount was to be paid in yearly instalments, with interest annually on the whole sum unpaid. The contract contained a confession of judgment in these words: “ The said party of the second part, in case default be made for the space of three months in all or any of the above payments, does hereby confess judgment to the said party of the first part, his heirs or assigns, for the whole amount unpaid on the above agreement.” On the back of the contract were the following indorsements: “April 1, 1885, paid $275; April 1, 1886, paid $520; April 2, 1888, $305.” There was no indorsement for either 1887 or 1889, and neither that for 1886, nor that for 1888, was for the whole amount of the payment then falling due. The judgment was entered on the 1st day of June, 1889.

When this contract was presented to the prothonotary, two questions were suggested for his consideration. The first grew out of the terms of the confession. Had the maker made default in any payment for the space of three months ? The second arose from the words of the act of 1806. Could the amount due be ascertained from the face of the instrument? If both questions could be answered affirmatively, the judgment could be entered. If either could not be so answered, the prothonotary had no power in the premises. The possession of an instrument in writing for the payment of money affords proof, prima facie, of a right in the holder to recover upon it according to its terms. The holder is not required to prove that it has not been paid. His case is made by the production of the instrument in the first instance, and the burden of showing payment is on him who alleges it. Whether the instrument be a note, a bond, or a contract, like that on which this judgment was entered, the rules of evidence are the same. The instrument makes for the holder a case, prima facie, on which he could recover before a jury, or have a judgment entered by virtue of the power of attorney. Both the default and the amount due wore ascertainable in the first instance from the face of the instrument. If payments liad been made that did not appear on the paper, so that there was in fact no default, the court would on application hear the defendant’s proofs, and strike off the judgment; but, until the prima facies of the instrument is overcome by proof, the judgment must stand. The trouble with the appellant’s case is that the general rule which he invokes is not applicable upon the facts of this case. The instrument was within the act of 1806, and upon its face it was practicable for the prothonotary to determine the existence of a default, and the amount due to the holder. The judgment was rightly entered, and the rule to strike it off was rightly refused.

The judgment is therefore affirmed.