Miflin v. Stalker , 4 Kan. 283 ( 1868 )

By the Oov/rt,

Safford, J.

The plaintiff, here and below, brought Ms action in the district court, declaring upon the following writing, to wit: >

‘£Proceedings had in Fourth Judicial District Court, Bourbon county, Kansas, in vacation: P. A. Miflin against R. N. Foot — debt on note. Now, at this day, and in vacation of the district court, comes the said P. A. Miflin, by iiis attorney, O. P. Bullock, as well .as the said defendant, R. N. Foot, in his own proper person ; whereupon the said defendant, voluntarily, and of his own free will, confesses judgment to the said plaintiff, in the sum of one hundred and thirty-one dollars and seventy-one cents for debt, and twenty-four dollars and thirty cents damages, by way of interest, which confession is based on the attached note ; therefore, it is considered by me, David R. Cobb, clerk of the district court in and-for Bourbon county, in the State of Kansas, that the said plaintiff recover against the said defendant the sum of one hundred and fifty-six dollars and one cent, so confessed as aforesaid, together with costs ; and that said plaintiff have hereof Ms writ of execution. And it is agreed, by the parties hereto, that no execution shall issue until after sixty days after the next term of the said district court.

“ [l. s.] ' David R. Cobb,

“ Clerk District Court of Bourbon County.

“April 11, 1861.”

COPY OE NOTE.

“ $131,71. One day after date, I promise to pay P. A. Miflin one hundred and thirty-one dollars and seventy-one cents, for value received of him, as witness my hand and seal, this 2d day of May, 1859.

“R. N. Foot.”

The petition was filed Jan. 11th, 1867, and contained two counts — the first claiming to recover upon the writing above set forth, as upon a judgment, and the second claiming to recover upon it as upon a contract or renewal of the original note.

The defendant, James Stalker, administrator of R. N. Foot, deceased, (Foot died December 1st, 1862, and Stalker was appointed his administrator Nov. 30th, 1864,) filed his demurrer to plaintiff’s petition, setting forth:

1. That said petition does not state facts sufficient to constitute a cause of action against the defendant.

2. That it appears on the face of said petition, in each cause of action therein stated, that the cause of action did not arise within three years before the commencement of this action.

The demurrer was sustained by the court, and plaintiff brings the case here for review. Two questions are presented, the determination of which disposes of the case.

And first: Is the writing set out above, a judgment, and such as would be binding upon Foot, if he was living, or upon Ms representatives, now.that he is deceased ? The writing shows, upon its.face, that it was rendered as a judgment by the clerk of the court in vacation. Had he any power so to do, under the statute? The sections bearing upon this question, are as follows:

“Sec. 387. Any person indebted, or against whom a cause of action exists, may personally appear, in a court of competent jurisdiction, and with the assent of the creditor or person having such cause of action, confess judgment therefor, whereupon judgment shall be entered accordingly.

■ “Sec. 388. Judgments may be entered upon confession, by an attorney authorized for that purpose, by a warrant of attorney, acknowledged or proved as conveyances of land, without any previous process or proceeding ; and judgments so entered shall be a lien from the date of entry.

“ Sec. 389. Such judgments may be entered by the clerk at any time, and execution shall issue thereon in the same manner as judgments rendered in open court.

“Sec.-390. The debt, or cause of action, shall be briefly stated in the judgment, or in writing, to be filed as pleadings in other actions.

“ Sec. 391. Such judgment shall authorize the same proceedings for its enforcement as judgments rendered in actions regularly brought and prosecuted, and the confession shall operate as a release of errors.”

If any such power is here conferred upon the clerk as would authorize him to “render judgment” in a case of this kind, we are unable to discover it.

Section 387 prescribes • a rule for one class of cases, when the debtor may personally appear in court and confess judgment. In such cases the only reasonable conclusion to be arrived at is, that the judgment is to be rendered by the court, and all that the clerk has, or can have to do with it, is to enter it. § 389.

It would be a proposition too absurd to be entitled to any consideration, to hold that the legislature in one section provides that debtors may appear in court and confess judgment, and in almost the same breath provides that the clerk might, at any time, that is, either in court or in vacation, render a like judgment. The clerk, then, who rendered what the plaintiff terms a judgment in this case, transcended his authority, and what purports to be a judgment is a nullity, and of no force whatever as such.

The other question presented in this case is : Has the writing, which we have said is invalid as a judgment, any force as an agreement or contract, such as would operate to renew the note originally given by Foot to Miflin ? In other words, did it constitute a new promise to pay, upon which suit could be maintained ? We think not. The law says: “In any case founded on contract, when any part of the principal or interest shall have been paid, or an acknowledgment of an existing 'liability, debt or claim, or any promise to pay the same, shall have been made, an action may be brought in such case within the period prescribed for the same, after such payment, acknowledgment or promise; but such acknowledgment or promise must be in writing, signed by the party to be charged thereby.”

Now, this writing was not made or signed by R. N. Foot, nor does it purport to be, nor was it so signed by any one for him. How, then, can it be said to be binding on him, or his representatives, under the law just quoted ? The truth is, all that can be claimed for the plaintiff in this whole .proceeding is, that Foot made a verbal acknowledgment before David R. Cobb that he was indebted to plaintiff, on the original note, to the amount of $156.03; but such acknowledgment, mot being in writing, or signed by the party to be charged, was insufficient to take the debt out of the statute of limitations.

It would be useless to -follow the argument of counsel iu this case further, as our conclusions upon the two main questions are decisive, as before remarked. We think the district court was right upon this demurrer.

All the justices concurring.