Weikel v. Long

The opinion of the court was delivered, March 11th 1867, by Agnew, J. — Presenting the true character of this case, the objections to it disappear, and the authorities cited are found to be inapplicable. The original judgment was entered under a warrant of attorney; and to the sci. fa. both defendants appeared and confessed judgment with a release of all errors ; John Weikel for the sum due, thereby leaving the liquidation in the hands of the court, and Henry Long for the specific sum $520.50, at which the previous judgment confessed by Weikel was liquidated by the prothonotary, as of the date of his confession. The whole proceeding was amicable, and the liquidation of the officer was the legitimate act of the court. Weikel and Long confessed judgment as of different dates. What of this ? It was good at common law, under the Pennsylvania practice, for Weikel’s judgment was interlocutory, and the prothonotary had a right to liquidate it at the time of Long’s confession, making but one final judgment: Noble’s Administrator v. Laley, 14 Wright 281. The liquidation of the prothonotary as of the date of the first judgment, being the act of the court, was clearly amendable. But this is no error. The case coming directly within the letter and spirit of the 6th and 7th sections of the Act of 2d August 1842, curing the entries of several judgments in the same case, and giving a rule both for execution and revival. Indeed, the whole common-law theory on the subject of actions against joint debtors, partners and judgment-defendants* has been deranged by legislation, beginning in 1830 and ending- in 1862: Bright. Purd. 1861, p. 808, and Supplement, p. 1282. It is argued that there being no breaches assigned, the judgments are erroneous. But the judgments were by confession, and the defendants were therefore presumed to be cognisant of the breaches; and the only difference between the interlocutory and the final judgment is that the defendant in the former left its liquidation directly in the hands of the court. It is the voluntary act of the defendant, and not reversible on error, the liquidation, if erroneous, being within the corrective power of the [242] court below. And it is well settled that a judgment under a warrant of attorney is not within the letter or reason of the statute of 8 & 9 ¥m. 3, cap. 11, § 8. This is well shown in McCann v. Farley, 2 Casey 173. Without any suggestion of breaches, an execution may be issued on a final judgment confessed by warrant of attorney, by simply marking the sum to be collected on the execution. The court will control the execution to prevent injustice.' This case is made stronger by the confession, which commits the liquidation directly to the court, before execution can issue. The right of the prothonotary to exercise the power of the court to liquidate judgments, whether by default or confession, is firmly established: Watkins v. Phillips, 2 Whart. 209; Bank U. S. v. Thayer, 2 W. & S. 443; Lewis v. Smith, 2 S. & R. 142; Bennett v. Reed, 10 Watts 396; Harger v. Coms. Washington Co., 2 Jones 251; Noble v. Laley, 14 Wright 284. The fact that the judgment was liquidated at the penalty and interest of the bond and-judgment upon it, is not a patent error. The penal sum was to secure payment of certain debts referred to, but not specified in the condition of the bond, non constat that the debts referred to do not amount to the sum at which the judgment was liquidated. If not, the remedy is an application to the court to correct the liquidation. Indeed, the judge below, while affirming the judgment, said he would hear proof of payments. Interest is allowed upon a penalty where it is necessary to protect that which it was given to secure: Boyd v. Boyd, 1 Watts 369 ; Perit’s Executor v. Wallis, 2 Dall. 252. A judgment bears interest by express statute, and here judgment was entered within nine days after the date of the bond. If there be an error of calculation or of liquidation, the court below may correct it, but we see no error in the record. Judgment affirmed.