Crim v. Crim , 162 Mo. 544 ( 1901 )

MARSHALL, J.

The following opinion was heretofore rendered in this case by Division One of this court:

“Action upon a foreign judgment for $7,004. Judgment for defendant. Plaintiff appeals.

“The parties are brothers, and both formerly lived in Ohio. The defendant was in debt to the plaintiff, and on the tenth of November, 1881, was about to remove to Missouri. The plaintiff demanded a settlement and the defendant, as he says, because he would have had trouble if he had not done so, gave the plaintiff his note for four thousand dollars, payable at one year, with six per cent interest, in settlement of the debt. The note contained a cognovit authorizing any attorney at law to appear in any court of the United States, 'waive process, enter appearance and confess judgment against- defendant for the amount due on the note, including interest and costs, and to release all errors. On the fourteenth of October, 1891, the plaintiff instituted suit against the defendant in the court of common pleas of Stark county, Ohio, upon the note. Pursuant to the terms of the note, W. J. Piero, an attorney of that court, entered the defendant’s appearance, waived process, and confessed judgment for $7,004, the principal and interest due on the note, released all errors and waived all rights of appeal. Thereafter, the plaintiff instituted this suit in the Barton Circuit Court on the foreign judgment. The answer of the defendant is a general denial, with special pleas: first, that the Ohio court had no jurisdiction, because defendant was and had been for over ten years a resident of Barton county, Missouri, and was not summoned and did not appear in the Ohio court and never authorized Piero or any one else to appear for him, and that at the time the suit was begun in Ohio the debt was barred by limitation in Missouri; second, that the parties are brothers and the defendant being in debt to the plaintiff was about to remove to Missouri, and plaintiff asked defendant to sign a note for the balance due plaintiff, saying he only wanted a settlement and would never enforce the nóte against defendant ; that defendant did not in fact owe the plaintiff as much as four thousand dollars; that he signed the note understanding that it was only a promissory note, and not knowing that it contained a provision authorizing a confession of judgment, and never having agreed to grant such authority to any one; that the plaintiff falsely and fraudulently represented to him that it was only a promissory note and concealed from him the fact that it contained a cognovit, and that relying on the statements of the plaintiff he signed the note without reading it or examining it.

“The trial developed the facts to be that notes of this character are usually used in Ohio; that the defendant had been largely engaged in dealing in cattle while he lived in Ohio, and had executed many such notes, and that several judgments had been rendered against him there upon similar notes under the cognovit therein contained; that he had procured many loans from the banks upon similar notes, and that the banks would not make loans upon any other kind of paper; that he had given similar notes to other persons before leaving Ohio; that there were no representations made to him about the character of this note when he signed it, and no attempt made to conceal its character from him; that he owed his brother some amount, the brother says five thousand dollars, and he says it was not so much, and that his brother offered to settle it if he would give him this note for four thousand dollars, and that he did so because, ‘I expect I would have had to sign the note or got into trouble.’

“The court refused all the instructions asked by the plaintiff, and on its own motion instructed the jury as follows:

“ ‘You are instructed that your verdict will be for the plaintiff for the full amount’ of the judgment sued on, with interest on the same from October 14, 1891, to date, at the rate of six per cent per annum, unless you further believe from the preponderance, or greater weight of the evidence, that the defendant, at the time he signed the note upon which the judgment sued on is based, had no knowledge that the said note contained a power of attorney to confers judgment, and had no. intention to sign such a note^ in which case your verdict will be for the defendant.’

“The jury found for the defendant, judgment was entered upon the verdict, and after proper steps the plaintiff appealed.

I.

“There was no fraud, misrepresentation, trick or concealment in the procurement of the note. It may be true the defendant did not read it before he signed it, but he was sui juris, had full opportunity to read it, and deliberately signed it. The law presumes he knew its contents, and he can not be permitted now to take advantage of his own fault or negligence. [O’Bryan v. Kinney, 74 Mo. 125; Snider v. Express Co., 63 Mo. 376; Railroad v. Cleary, 77 Mo. 637; Mateer v. Railroad, 105 Mo. 352; Kellerman v. Railroad, 136 Mo. 177; 1 Whart. on Contr., sec. 196.]

“The defendant relies on Wright v. McPike, 70 Mo. 175, approving what was said in Briggs v. Ewart, 51 Mo. 249, as follows: 'It- may be assumed as an axiom that no one can be made a party to a contract without his own consent. Although his signature may be put to the writing, and may have been written by himself, yet, if he did not know what he was signing, but acted honestly under the belief that he was signing some other paper, and not the one he really signed, he ought not to be bound by such signature.’ In McPike’s case this was quoted, and then it was said: 'Although that case has been overruled, the doctrine announced in the foregoing extract from the opinion was not disturbed by the court in the overruling decision. As between the original parties, if one has procured the signature of the other to a written agreement, whether by fraud or not, which does not contain the contract made by the parties, but a different one, he can not be permitted to avail himself of that contract, but must stand by the one which was in fact entered into by both parties.’

''In Priggs v. Ewart, supra, it was held that such a defense could be made even if the note was held by a bona fide purchaser for value and without notice, before maturity. This case, as was also the case of Corby v. Weddle, 61 Mo. 452, which followed it, was expressly overruled in Shirts v. Overjohn, 60 Mo. l. c. 312.

“The doctrine further announced in McPike’s case, that as between the original parties such questions are open to inquiry in a suit at law upon the note, whether the note was made by fraud or not, is no longer the law in this State, as the cases cited above clearly show.

“Courts of equity set aside contracts procured by fraud and reframe contracts where there has been a mutual mistake of the parties. But it is an invariable rule of law that in the absence of fraud or mistake, parol evidence is not admissible to contradict or vary a written contract. The written contract is conclusively presumed to merge all prior negotiations and to express the final agreement of the parties. To permit a party when sued o~ a written contract to admit that he signed it bnt to deny that it expresses the agreement he made, or to allow him to admit that he signed it but did not read it or know its stipulations, would absolutely destroy the value of all contracts and negotiable instruments. The reason underlying the rule is to give stability to written agreements, and to remove the temptation and possibility of perjury, which would be afforded if parol evidence was admissible.

“But aside from these considerations, this is a suit upon a judgment and not upon the note.- The note is merged in the judgment, and the defenses that might have been available if properly interposed in the suit on the note are not open to review here. Even if there was fraud in the note constituting the cause of action, the judgment can not be attacked. Only fraud in the very act of procuring the judgment can be interposed as a defense to the judgment, even in a direct attack, in equity to set aside the judgment. [Hamilton v. McLean, 139 Mo. 678; Bates v. Hamilton, 144 Mo. l. c. 11.]

II.

“Judgments upon notes containing such a cognovit are valid judgments in Ohio. [Lessee v. Thompson, 3 Ohio, 272; Watson v. Paine, 25 Ohio St. 340; Clements v. Hull, 35 Ohio St. 141.]

“Such judgments are also valid in other States. [Hansen v. Schlesinger (Ill.), 17 N. E. Rep. 718; Roche v. Beldam, 119 Ill. 320; Holden v. Bull (Pa.), 1 Penn. & W. 460; Ely v. Karmany, 23 Pa. St. 314; Stein v. Brunner (La.), 7 So. Rep. 718; Boot & Shoe Co. v. Ealk (Wis.), 61 N. W. Rep. 562.]

“The identical question here involved came before this court in Randolph v. Keiler, 21 Mo. 557, where the suit was upon a judgment rendered by the ‘inferior court of common pleas, in and for the county of Sussex, State of New Jersey,’ upon a note containing a cognovit in almost the exact terms with the note upon which the Ohio court entered judgment in this case. Practically the same defenses were made there that are made here. But it was held that such judgment was valid in New Jersey, even though neither of the parties were citizens of that State or had ever been in that State, and this being so the judgment was entitled to Tull force and credit’ in this State, under section 1 of article 4 of the Constitution of the United States, and hence the New Jersey judgment was enforced here.

“Similar judgments are enforced in other jurisdictions, even though the defendant was a resident of another State than that in which the judgment sought to be enforced was rendered. [Kitchen v. Bellefontaine National Bank (Kan.), 36 Pa. Rep. 344; Ritter v. Hoffman, 35 Kansas, 215; Crafts v. Clark, 38 Iowa, 237; Nicholas v. Earwell, 24 Neb. 180; Snyder v. Critchfield (Neb.), 62 N. W. Rep. 306; Sipes v. Whitney, 30 Ohio St. 69.

“The question whether the note upon which the judgment sued on was barred by limitation in Missouri, is not open to review here. The suit is upon the judgment, and that is not barred by limitation.

“It follows that the trial court erred in giving the instruction quoted, and also that neither the answer nor the evidence shows any defense to the suit. The trial court should have directed a verdict for the plaintiff, and the judgment of that court is reversed and the cause remanded to be proceeded with in accordance herewith.”

Upon motion, the cause was transferred to Court in Banc, upon the dissent of Valmant, J. The case has again been fully argued and further briefed by counsel.

In addition to what is said in the divisional opinion, it is proper to say, that the cases of D’Arcy v. Ketchum, 52 U. S. 165, and Pennoyer v. Neff, 95 U. S. 714, are not applicable to the case at bar; the first, because there was no service of any hind upon the partner who lived in Louisiana, and, therefore, the personal judgment of the New York court against him was void; and the second, because the service was by publication— constructive — and, therefore, it would not support a personal judgment, while in the case at bar the defendant was in court by his own voluntary act, when the judgment was rendered against him.

Counsel for defendant, in a supplemental brief, has referred to the following cases as authority for the contention that the decision in this case and that in Randolph v. Keiler, 21 Mo. 557, are not in harmony with the rule and policy in this State: Overstreet v. Shannon, 1 Mo. 529; Sallee v. Hays, 3 Mo. 116; Smith v. Ross, 7 Mo. 464; Gillett v. Camp, 23 Mo. 375; Miles v. Jones, 28 Mo. 87; Foote v. Newell, 29 Mo. 400; Latimer v. U. P. Ry. Co., 43 Mo. 105; Sevier v. Roddie, 51 Mo. 580; and Gilbreath v. Bunce, 65 Mo. 349.

A careful examination of these cases shows, however, that they have no application to the case at bar. Thus, in Over-street v. Shannon, 1 Mo. 375 (529), it appeared that the defendant had not been served in any manner in the foreign State. In Sallee v. Hays, 3 Mo. 116, the judgment was against the defendants, who were non-residents of the foreign State, without any service whatever, upon a covenant of their ancestor, and the decree charged the assets descended with the debt of the ancestor. It was alleged that such a decree was conclusive upon the parties in Kentucky. This court held that the judgment was not valid here because the defendants had not been brought into court in any manner whatever. In Gillett v. Camp, 23 Mo. 375, and Latimer v. Railroad, 43 Mo. 105, the judgment was based solely upon constructive service, by publication. In Smith v. Ross, 7 Mo. 464, the action was upon a foreign judgment against Smith, who was served, and Haniman, as to whom the return of process was “not found,” the judgment was held to be void as to Haniman, because he was never brought into court. In Miles v. Jones, 28 Mo. 87, the defendant was personally served, but the judgment was attacked, and set aside because it was procured by fraud. In Foote v. Newell, 29 Mo. 400, it appeared that a judgment was rendered against the defendant in Indiana (it does not appear from the statement of facts whether the defendant was in court or not, but it seems to be assumed that he was, at any rate that question was not involved in the case) and that the sheriff had levied upon the property and that by virtue of a statute of that State the defendant replevied the property levied on and obtained a stay of execution according to the law of that State, by giving a bond to pay the judgment. The statute provided: “And such bond, from the date of its execution, shall be taken as, and have the force and effect of, a judgment confessed in a court of record against the person or persons executing the same and against their estates, and execution may issue therein accordingly.” The judgment was not paid and the bond was sued on in this State as a judgment of the State of Indiana. It was held that such a bond had “no affinity” to a judgment, and was not such a judgment as is contemplated by the act of Congress. All of which is undoubtedly right, for such a bond is no more a judgment than is any contract or power of attorney authorizing a confession of a judgment. It is the act of the parties and is not the judgment of a court. In Sevier v. Roddie, 51 Mo. 580, the action was upon a Tennessee judgment. It appeared that a third person had obtained a judgment against the defendant as principal and the plaintiffs as his sureties. The sureties paid the judgment, and under the laws of Tennessee obtained a summary judgment, without notice, against the principal, and the suit was upon this judgment. It was properly held that the judgment was not such a judgment as the act of Congress contemplated, because the defendant not being in court, the proceeding was void. In Gilbreath v. Bunce, 65 Mo. 349, it appeared that under the laws of Arkansas, the plaintiff, a minor, had been relieved of the disability of infancy “so far as to authorize him to demand, sue for and receive all moneys belonging to him in the State of Missouri, in the hands of his curator,” etc. Thereupon he sued the defendant, the curator of his estate in Missouri, upon his bond as such curator, to recover the estate in his hands. It was held that the minor could not maintain the suit, as under the laws of Missouri a minor can only appear by guar^ dian, and that the Legislature of Arkansas could not pass a law which would have the effect of giving a non-resident minor of this State a different status in the courts of this State from that of a resident minor in this State, when seeking the aid of the courts of this State. This decision is right, but it is not perceived how it applies to the ease at bar, nor how the act of Congress has any bearing on it, for the action was not for the enforcement of a judgment of a foreign State, but was simply an attempt to make the minor of age when he came into the Missouri courts, contrary to the laws of this State. It did not remove his disabilities absolutely, or at all in Arkansas, but only “so for as to authorize him to demand, sue for and recover all moneys belonging to him in the State of Missouri, in the hands of his curator,” etc. This tvas simply a bungling attempt by the lawmakers of Arkansas to control judicial proceedings in Missouri, and is without precedent in law that we are aware of.

The defendant strenuously contends that the case of Grover and Baker Sewing Machine Co. v. Radcliffe, 137 U. S. 287, is “on all fours” with the case at bar. In that case it appeared that: “B, a citizen of Maryland, having executed a bond, containing a warrant authorizing any attorney of any court of record in the State of New York, or any other State, to confess judgment for the penalty, and judgment having been entered against him in Pennsylvania by a prothonotary, without service of process, or appearance in person or by attorney, under a local law permitting that to be done, Held: (1) that in a suit upon this judgment in Maryland, the courts of Maryland were not bound to hold the judgment as obligatory either On the ground of comity or of duty, contrary to the laws and policy of their own State; (2) B could not properly be presumptively held to knowledge and acceptance -of particular laws of Pennsylvania or of all the States other than his own, allowing that to be done which was not authorized by the terms of the instrument he had executed.” It was pointed out that a judgment of a sister State was required to be observed in another State only when, (1) the defendant was served with process, or voluntarily entered his appearance, “or that he had in some manner authorized the proceeding,” (2) that an instrument authorizing a confession of judgment must be strictly followed, and its terms could not be enlarged by reading into it the laws of another State, of which he is not charged with knowledge, and hence, if the power to confess judgment was conferred upon any attorney of any court of record, its terms could not be enlarged so as to authorize a prothonotary to confess judgment, even if the laws of the State where the judgment was rendered expressly permitted a prothonotary to act whenever any attorney was authorized to do so.

This case is “on all fours” with the case at bar, and is ample support for the decision herein, so far as it holds that where the defendant has “authorized the proceeding,” he is bound by the judgment, and the courts of other States must give force and effect to the judgment of the sister State, whenever the authority has been strictly pursued, as is the case here, but it is unlike the case at bar in this, in that case the authority for the proceeding, conferred by the act of the defendant, was not strictly pursued, while here it was done. That judgment was held void in a sister State because a prothonotary does not come within the class of “attorneys of courts of record,” and the act of such prothonotary was not, therefore, authorized by the defendant, and the law of the State could not enlarge the authority granted by the defendant. That decision is also valuable as showing plainly the principle upon which D’Arcy v. Ketchum, and Pennoyer v. Neff, supra, both of which are referred to iii that case, rested, to-wit, that in neither case had the defendant been served with process or voluntarily appeared or in any manner authorized the proceeding. It also accentuates the proposition that if the judgment is rendered against a party who is in court in any one of the three ways specified, it is valid not only in the State where it is rendered, but, under the act of Congress, in all sister States.

We subscribe and adhere to all the cases cited and herein reviewed, but the rules there announced are not contravened by anything that is decided in the case at bar. On the contrary, those were all cases where the party sought to be charged had not been brought into court by- personal service, and had not voluntarily entered his appearance and had not authorized the proceeding against him, while in the case at bar the defendant had expressly authorized the exact proceeding that was had against him in Ohio.

Eor these reasons the opinion heretofore rendered in Division One is adopted as the opinion of the Oourt in Banc, and the judgment of the circuit court is reversed and the cause remanded to be proceeded with in accordance herewith.

Burgess, O. J., and Sherwood, Brace, and Gantt, JJ., concur; Valliani and Robinson, JJ., dissent.