Dimler Mfg. Co. v. Dayton Sav. & Trust Co.

FERNEDING, J.

The Dayton Savings and Loan Co. took a judgment against the Dimler Mfg. Co., Nov. 13, 1924, upon a cognovit note. It seems that one Dineén, by virtue of a warrant of attorney, appeared in open court and confessed judgment for the amount of said note. The proceedings were regular except that the petition did not have attached thereto a copy of the note and warrant of attorney.

On Feb. 18, 1925, a motion was filed in the Montgomery Common Pleas by the Manufacturing Co. to vacate the judgment, it being claimed that the judgment was not taken in open court and the note upon which suit was brought was not attached to the petition. On March 13, 1925, the motion was overruled. Error was prosecuted, and the Court of Appeals in affirming the judgment held:

1. The cognovit judgment recites that it was taken in open court and it would have been incumbent upon the Mfg. Co. to produce sufficient evidence to satisfy the trial court that such judgment was not taken in open court.

2. Since the judgment expressly irecfited that the note and warrant of attorney were attached to the petition, a prima facie case was made in favor of the holder of the judgment.

3. It would require some evidence to overthrow the express recital of the court below.

4. None having been preserved by the bill of exceptions, it must be presumed that sufficient evidence was not offered to overthrow the prima facie case made by the recitals in the judgment.

5. Alleged failure to attach warranty of attorney would not constitute want of jurisdiction, but at most an irregularity which would require an equitable showing of a good defense under 11637 GC. No such showing having been made the judgment of the court in overruling the motion to vacate is affirmed.