22 Ill. App. 24 | Ill. App. Ct. | 1886
There are but two points made for the reversal of the judgment in this case.
1st. The money mentioned in the promissory note upon which the judgment-was rendered was not due or payable at the time the judgment was rendered, therefore the attorney who signed the cognovit had no authority to confess such judgment, 'nor had the clerk any right to enter such judgment on the records of the court, and the same is void.
2d. The warrant of attorney upon which this judgment was rendered was more than a year and a day old at the time the judgment was so confessed, and there was no affidavit hied in the case showing that the defendant was then living and that the debt or any part of it was then due and owing.
It is insisted by counsel for plaintiff in error that the note by its terms did not become due and payable until one year after the date thereof; that áfter it did mature, there was an extension granted for another year by the defendant in error to the plaintiff in error, the plaintiff in error paying the interest on the same for another year in advance; and that whatever may have been the rights or liabilities of these parties under the original contract, entered into between them at the time this money was first loaned and the note and warrant of attorney were executed, that contract was on the 28th day of April, 1884, entirely abrogated so far as the terms and condition of the payment of the money mentioned in the note was concerned. We assent to the proposition that the contract for an extension of time abrogated the original contract between the parties. In case of the Central Bank v. Willard, 17 Pick. 150, it was proved that after a promissory note discounted by the bank had become due, the bank, upon the application of the promisor for a renewal, indorsed on the wrapper of the note the words “ renewed for three months,” and that the promisor paid the interest in advance; the note was retained by the bank and no new note was given. It was held that the evidence proved an independent agreement which could not bar the action on the note; that at most it would be evidence of a collateral contract. The same rule is announced in Payne v. Weible, 30 Ill. 166. The note and warrant of attorney as said in Sherman v. Baddely, 11 Ill. 622, “ having been executed at the same time and in reference to the same subject-matter, must be construed together and considered as forming one transaction. It amounts to this: “ The debtor is to have a credit of ninety days with the right on the part of the creditor, if he chooses to arrest it, of having a judgment entered up at any moment for the amount of the debt. * * * The creditor says to his debtor, I will take your note, payable in ninety days, if. you will permit me, in case I shall find it necessary for the protection of my interests, to take a judgment previously for the: amount of the debt. The debtor accedes to the proposition by 1 executing and delivering to the creditor a warrant of attorney expressly stipulating that the judgment maybe taken. * * * The defendant has no right to complain of the judgment, for he deliberately authorized it to be entered. The note was due for the purpose of the judgment by the express stipulation of the maker.” The same rule is announced in Adams v. Arnold, 86 Ill. 185. In Towle v. Gonter, 5 Ill. App. 409, under the authorities, siipra, we held that the first point made by counsel for the plaintiff in error is not well taken.
The second point urged by counsel for plaintiff in error is, “that the warrant of attorney upon which this judgment was rendered was more than a year and a day old at the time the judgment was so confessed, and that there was no affidavit filed showing that the defendants were then living, and that the debt or any part of it was then due and owing.” This objection does not go to the. jurisdiction to enter the judgment, and the failure to file such affidavit can only be taken advantage of upon equitable grounds. In Rising v. Brainard, 36 Ill. 79, the court says: “ Before a judgment .will he set aside because an affidavit was not filed showing that the defendant was alive and that the debt was due and unpaid, the party making the application is required to show some equitable reason therefor.” The same rule is announced in Stuhl v. Shipp, 44 Ill. 133. The rule announced in Hinds v. Hopkins, 28 Ill. 344, “ that it wa's necessary that the affidavit should be filed, showing that the defendant is alive and that the debt was due and unpaid when the judgment was entered in vacation, more than a year and?"a day after the power was executed,” was modified as stated in Rising v. Brainard, 36 Ill. 79.
This court, after a careful consideration of all the decided cases of our Supreme Court upon the question of judgment, in vacation as to what papers were jurisdictional and what were not, held that failure to file affidavit that the defendant was alive and that the debt was due and unpaid when the power of attorney was more than a year and a day old, was not jurisdictional, and that advantage could only be taken of it upon equitable grounds, which case was affirmed by the Supreme Court — Stein, Block & Co. v. Good, 16 Ill. App. 516. In Gibboney v. Gibhoney, 2 Ill. App. 322, it was said, this being a judgment by confession by virtue of a warrant of attorney and without actual notice to the appellee, it would be competent for the court upon a proper showing to so far vacate such judgment as to permit appellee to defend against the same, to permit an issue to be made up and tried by a jury as to whether upon the merits of the case he has a defense to the whole or any part of the judgment. But we are not familiar with any rule of law or practice by which such right to defend in such cases will be ordered on motion, unless upon the face of the record, or some showing as a foundation for such motion it shall ap pear, prima facie at least, that the defendant has a defense in whole or in part to the said judgment upon the merits. Same rule announced in Knox v. Winsted Savings Bank, 57 Ill. 330. Applying to this case the rule announced swpra, we are unable to find any showing in the record of any defense to this judgment. Order overruling motion and judgment for costs is affirmed.
Judgment affirmed.