Burchett v. Casady, 18 Iowa 342

Burchett v. Casady

18 Iowa 342 | Iowa | 1865

Cole, J.

1. Judgment by confession: statement. I. This is a controversy as to the validity of a judgment by confession, between the parties to the judge16’1*'- The test of validity of such judgment between the parties to it is not the same as when ^ controverSy js between a creditor of such judgment debtor and the plaintiff therein. The difference may find an apt illustration in the rules applicable to a fraudulent conveyance, which is held valid as between the parties, but void as to creditors.

The words, “justly due,” are not found in the confession in this case, nor does our statute require their use, but only words to that effect. Rev., § 8399. The statement of facts out of which the indebtedness arose, is very concise and specific. It shows the giving of the note, its consideration, its assignment to the plaintiff, and the defendant’s indebtedness thereon. It was held by this court, in Plummer v. Douglas & Watson, 14 Iowa, 69, that, “ as between the par*344ties, when the defendant swears that a certain sum is due, and he consents to the rendition of a judgment for that amount, the necessity for such a statement ceases to exist.;” and, also, that the defendant is estopped from denying the validity of a judgment which, by his own act, he has induced the plaintiff to obtain. See, also, Vanfleet v. Phillips et al., 11 Iowa, 558; Churchill et al. v. Lyon, 13 Id., 431; Vannice v. Green, Traer & Co., 16 Id., 574; Desdi v. Odell, 3 Hill, 219; Welland Canal Company v. Hathaway, 8 Wend., 483. The judgment by confession vras, therefore, certainly valid between the parties, and authorized the issuance of the execution and the levy thereunder.

2. - “forthwith." II. jBut it is claimed that, since the statement was filed on Saturday evening, and no judgment rendered until Monday following, the justice had no authority tken ren¿[er THis is based upon § 3895 of the Revision, which provides that, “in cases of nonsuit, confession, or on the verdict of a jury, the judgment shall be rendered and entered on the docket forthwith.” In this connection, it seems to us that “forthwith” means in a reasonable time. The justice may certainly stop to eat; and jf, as in this case, it is late in the evening, he may stop to sleep; and he ought not to do official labor on the Sabbath. Davis v. Simma, 14 Iowa, 154.

3. - voidable. Again, even if there was unreasonable delay, the judgment would not, for that reason, as between the parties, be absolutely void, but only voidable. Such a judgment could not, by a party to it, be assailed collaterally, but must be set aside by writ of error, or other proper and direct proceedings. ,

It follows, therefore, that the judgment of the District Court was erroneous, and must be

Reversed.