6 Or. 344 | Or. | 1877
On the trial in the court below, the defendant not only produced in evidence this judgment and the proceedings of the sale under it, but the bond mentioned in the judgment and the proceedings in the probate court, which required •the execution of the bond. All these proceedings, and the judgment and proceedings under it, were objected to by the plaintiff.
The first question presented which we will consider is, whether the judgment is valid on its face, it being given for a contingent liability on a guardian’s bond. It is claimed
This question depends entirely on the construction of the statute, which pro.vides that this confession of judgment may be given “ to secure any person against contingent liability on behalf of the defendant in such judgment.” This statute is general, and does, we think, embrace this kind of a contingent liability. The liability spoken of and provided for by the statute may be one which is not ascertained or fixed by any court, and the sum confessed therefor is asserted by the parties to the judgment, and the judgment became a lien on the land.
The second question is can such a judgment be enforced by execution. This must depend on the statute. Section 210 of the code, defines a judgment to be “the final determination of the rights of the parties.” When it is for money, as in this case, it is adjudged that plaintiff have and recover of defendant a certain sum; where the judgment is by confession, the parties fix the sum due or to become due, or the contingent liability, and fix it in the judgment, and if there is no provision in the judgment for the stay of execution, the plaintiff can have execution as provided in section 271 of the code, unless the judgment be payable by installments, which- is provided for in section 217. And we think judgments by confessions are subject to the same rule as to the issuance of execution as other judgments, except as otherwise provided. If other proceedings are to be had before the liability attaches, then the judgment is not a final determination of the rights of the parties, and is not a final judgment. We think the judgment by confession, when rendered under the provisions of the statute is a final judgment, and is liable to be enforced as other judgments. In the argument it was not insisted that the proceedings, after the issuing of the execution, were so irregular as to
' It is claimed that this being a judgment by confession under a particular statute has not the same presumptions in its favor as one rendered by the same court in an action pending in the court in the regular course of business. So far as this matter is concerned, under our code, all proceedings are to a great extent regulated by statute, and we think great uncertainty would result from attempting to establish different rules in determining the effect of different classes of judgments rendered in the same court, and we think a judgment by confession must be determined by the record of the judgment and the judgment sale, and that no inquiry can be had into the consideration of the instrument on which it was founded; for the parties, by agreeing to the judgment, have waived all right to impeach the consideration of the instrument on which it was founded. And it was held by this court at the last term, in the case of Strong v. Barnhart, which was on a motion to revive a dormant judgment, that the only defense to such judgment was that it had been paid or satisfied, or that there was no such judgment.
The judgment of the circuit court will be affirmed.
