Pearce v. Miller

Mr. Justice Ricks

delivered the opinion of the court;

At the May term of the court the superior court of Cook county entered judgment in favor of the appellee, against appellants, by confession, for the sum .of $6500 on a judgment note dated May 18, 1900, payable to the order of the Produce Exchange Bank of Chicago, and by them assigned, before maturity, to appellee, and ft. fa.. issued on such judgement. At the June term, 1900, of the' trial court appellants moved the court to quash the execution, vacate and set aside the judgment and for leave' to plead, which "motion was heard on affidavits, only, in support of and in opposition thereto. The court granted a stay of execution, arid reduced the amount of the attorney’s fee included in the judgment from §500 to §200, whereupon appellee remitted §300 from said judgment, entered at the May term, and the court overruled appellants’ motion to vacate the judgment and to allow appellants to plead, and entered judgment for §6200. The case was taken by appeal to the Appellate Court for the First District, and the judgment and action of the superior court were affirmed, whereupon a further appeal was. prosecuted to this court.

The warrant of attorney, which formed a part of the note, provided that a certain amount should be paid as attorney's fee in case judgment was entered upon the note. It is contended by appellants that at the time the note was written the amount of attorney’s fee specified was §200, and that the sum was afterwards altered by the legal holder thereof to read §500. '

A number of errors have been assigned by appellants, but, as stated in their brief, “while each assignment of error is distinctly set forth in specific form, each and all of them depend upon the view the court takes as to where the weight of evidence on the question of material alteration rests.” In fact, no other ground of error is urged or discussed by appellants in their brief or argument, and they will be held to have waived all other grounds, the whole argument and all the authorities going solely to the question of fact as to the alleged alteration and as to the legal effect thereof. There is no dispute between appellants and appellee that if the amount of attorney’s fee written in the warrant of attorney had been intentionally altered or changed, after its delivery, from $200 to $500, such alteration would be fatal to the instrument and a confession could not be entered thereon.

In the exercise of equitable powers resting in the court in the control of judgments conféssed on notes and bonds under powers of attorney, the superior court was authorized to hold the rights of the parties in statu quo until it had given consideration to the questions raised by the affidavits. (Lake v. Cook, 15 Ill. 353.) And if the affidavits, when considered, should disclose a clear and equitable reason for opening the judgment and allowing appellants to plead, then it would be the duty of the court, in the exercise of such equitable powers, to so order, (Knox v. Winsted Savings Bank, 57 Ill. 330,) and, in the exercise of liberal discretion, pass upon the questions thus raised and presented. (Evans v. Schriver Laundry Co. 57 Ill. App. 150.) We have examined the affidavits, and are not able to say that, considering them all together, the case was so involved in doubt or that they were so contradictory that the truth could not with reasonable certainty be ascertained, or that in the refusal of the court to grant the leave asked there was an abuse of discretion, but, on the contrary, we think the affidavits sufficiently showed no alteration had been made in the note or power of attorney, and the action of the court. in denying the motion was, in our judgment, proper.

The trial was had before the court without a jury, and no propositions of law were asked to be held by either appellants or appellee, nor were any propositions held by the court of its own motion. In such state of the record there are no other matters open for our consideration, and the judgment of the Appellate Court is affirmed.

Judgment affirmed.