Houpt v. Bohl , 71 Ark. 330 ( 1903 )

Wood, J.

The judgment on which the execution sought to be quashed was issued is not.a judgment by confession under the statute (section 5872 Sand. & H. Dig.), but rather a judgment by consent, after the filing of a complaint and the entry of appearance by the parties defendant.

. Talcing the whole -record together, we are of the opinion that this is the proper construction. There was a complaint filed which stated a cause of action against the defendants, who were all named. These defendants all signed a power of attorney authorizing C. Y. Teague, Esq., to waive all service of summons and enter their appearance and consent to the rendition of judgment. The record of the judgment recites that “the defendants each confess judgment herein by their written agreement duly filed herein.” This recital does not preclude the idea that the defendants appeared in person, and filed their written agreement, and confessed in person the judgment in accordance therewith. But, if it was filed by C. Y. Teague, who confessed or consented to the judgment for them, such action on his part was expressly authorized by the written agreement or power of attorney, and, being in response to a regular complaint against the defendants, we think was tantamount to an entry of appearance for the defendants and a consenting to judgment for them. This they could do by their attorney as well as in person in a proceeding instituted by the filing of complaint.

True, Teague was the attorney, for the plaintiff, and generally the attorney for the plaintiff could not consent to judgment for the defendants, and thus act as attorney for both parties. But where this is done by the consent of the defendants, who are cognizant of all the facts, and there is no fraud or collusion charged, we can see no objection to it. Here the consent was in writing, and there is no claim of any fraud, or that the defendants were not. fully cognizant of the fact that Teague was authorized also to represent the plaintiff.

In Wassell v. Reardon, 11 Ark. 705, it is held that: “As a general rule, agents cannot act so as to bind their principals where they have, or represent, interests adverse to the principals, but this rule does not prohibit an attorney at law, into whose hand a debt has been placed for collection, from acting as the attorney in fact of the debtor to confess judgment upon the debt, the debtor being advised of the extent of the attorney’s agency for the creditor, and executing the power to avoid costs of suit.” This was under the statute authorizing an attorney to confess judgment. But the case is authority that the attorney for the creditor by his consent may act as attorney for the debtor also, and the principle announced is applicable here.

The judgment of the circuit court in sustaining the demurrer to the petition and in-dismissing same is correct, and same is affirmed.

Battle, J., dissenting.