Graves v. Whitney , 49 Ill. App. 435 ( 1893 )

Opinion of the Cottkt,

Cartwkioht, J.

A judgment by confession was entered on August 3, , 1892, by the clerk of the Circuit Court of Putman County, in vacation, for $15,600, in favor of appellee, against Philip R. Bohlen. Afterward, at the next succeeding term of ■ said court, on October 24, 1892, appellant, as executor of the last will and testament of. said Philip R. Bohlen, then deceased, entered a special appearance for the sole purpose of questioning the jurisdiction to enter said judgment, and moved the eourt to set aside and vacate it as absolutely void, because there was no jurisdiction of the person of the defendant at the time it was entered. Said executor on the same day produced and filed a duly authenticated copy of the last will and testament of said Philip R. Bohlen, deceased, and of the probate thereof, in the Probate Court of Shelby County, Tennessee, and the- appointment of said executor. From the record so produced, it appeared that Philip R. Bohlen died at his home in Shelby County, Tennessee, August 27, 1892, being then a citizen and resident of Memphis, in said connty, leaving a last will and testament of which appellant was appointed executor. On the next day after the filing of the above motion, appellee filed a cross-motion to strike appellant’s motion from the files, together with an affidavit in support thereof, stating that notice had not been given of the intended filing of said motion before it was filed. The court thereupon continued the proceeding for the purpose of giving notice of the motion to vacate the judgment. Notice was given November 3, 1892, -that the motion to vacate would be called up for hearing ou the first day of the March term, 1893, at which time both parties appeared, and the court overruled both the motion to vacate the judgment, and the cross-motion to strike from the files the original motion. Both parties have assigned errors.

The reasons for claiming that the judgment was void for want of jurisdiction, were apparent on the face of the record, and were, that the warrant of attorney filed, did not authorize the attorney appearing for the defendant to appear and confess judgment in vacation, and that there was not sufficient proof of the execution of the warrant of attorney.

The note and warrant of attorney were in one instrument, as follows;

“ 310,000. January 17th, 1884.

Five years after date, I promise to pay to the order of Jake Hill, ten thousand dollars, without defalcation, value received, with interest from date, and I do hereby empower any attorney of any court" of record within the United States, or elsewhere, to appear for me and confess judgment against me as of any term for above sum, with costs of suit and attorney’s commission of five per cent and release of all errors, hereby waiving inquisition, and agreeing to the condemnation of any property that may be levied upon by any execution which may issue forthwith on failure to comply with the conditions hereof; also hereby waiving the benefit of the exemption laws, or any act of assembly relative to executions now in force or hereafter to be passed.

Witness my hand and seal.

P. R. Bohlen. [Seal.]

Attest: George A. JDougan.”

The instrument bore the following indorsements:

“ For value received, I hereby sell, assign and transfer the within note and all moneys secured thereby, to George I. Whitney, of Pittsburg, Penna.

Jake Hill.

Filed Apr. 1, 1890. John B. Clough, Clerk.

Filed August 3, 1892. Jefe Dubley, Clerk.”

It is a rule firmly established that the authority to confess a judgment without process must be clearly given, an^ strictly pursued. Chase v. Dana, 44 Ill. 262: Frye v. Jones, 78 Ill. 627; Keith v. Kellogg, 97 Ill. 147; Gardner v. Bunn, 132 Ill. 403. The power in this warrant was to appear and confess judgment as of any term. The judgment entered was a vacation judgment merely. The attorney did not appear or confess judgment as of any term, but as in vacation. The argument for appellee is that the intention was to authorize a judgment in vacation, and have the holder of the note select some term, one or more terms or years prior to the entry, and have the judgment entered nunc pro tunc as of the term so selected, so that it would become a judgment in term. It is said that the object was to enable the holder of the note to cut off defenses and remedies of the maker in that way, or place it beyond the power of the maker to reach the judgment on account of its being entered as of a term long before. If the power was intended as claimed to authorize a nunc pro tunc judgment in vacation as of some term, it could not be so exercised in this State. When attempted to be exercised here it could only be done by virtue of some procedure authorized by law in this State, and such a proceeding, as is suggested, could not be had here. A clerk of court is not authorized to so enter a judgment. He can only enter judgments in vacation as such, and can not enter them as of some term or nwic pro tunc.

As there is no power to so enter a judgment, there can be no power to so confess one. A judgment by confession as of a term can only be entered in term. “ As of any term,” when applied to entering judgment by confession, can only mean at any term. In our opinion the warrant only authorized a confession in term, as that was the only time when it could be done as of a term. The judgment was therefore entered without authority, and was void.

It is objected that appellant had no right to make the motion because he produced and filed his letters testamentary at the term subsequent to the entering of his motion. The record shows, as -before stated, that proof of the will, +he probate and his appointment was produced and filed on day the motion was entered. If there was anything in the point, it was not presented to the Circuit Court, not being assigned as a reason for striking the motion from the files, or otherwise raised, and was waived by contesting the motion on the merits.

It is further urged that appellant could not raise any question concerning the judgment without entering a full appearance in the suit, and submitting himself to the jurisdiction of the court, so that a trial might be had upon the merits. ~We do not understand that where the object of entering an appearance is to question the jurisdiction of the court, it is necessary that the defendant should submit himself to the jurisdiction, surrender his right in that respect, and confer jurisdiction where none had existed. The judgment being void the court should vacate it, and leave appellee to pursue the ordinary remedy by action. Walker v. Ensign, 1 Brad. 113; Stein v. Good, 115 Ill. 93.

Being of the opinion that the warrant of attorney did not authorize the entry of the judgment, it will not be necessary to consider the questions arising upon the proof of its execution.

The cross-errors are assigned on the refusal of the court to strike appellant’s motion from the files. The only reason given in support of the motion ivas want of notice. There is no requirement that notice shall be given before the filing of the motion. Appellee appeared and had notice of the filing of the motion at the time when it was filed. Notice Avas given seAeral months before the term Avhen it Avas heard, at which term appellee again appeared and contested it. No further or other notice Avas necessary.

The order of the court overruling the motion to vacate the judgment Avill be reversed, and the cause remanded.