Edmonds v. Montgomery

1 Iowa 143 | Iowa | 1855

Weight, C. J.

Tbe first and second instructions we will consider 'together, as they in substance contain tbe same proposition. Tbat proposition is, tbat plaintiff could not recover on tbe proof made, because tbe name of tbe attorney confessing tbe judgment did not appear on tbe record. No sufficient reason or authority has been urged at law, fox this ruling; neither, indeed, do we think there can be.

It will be observed tbat no objection is taken, tbat tbe court bad not jurisdiction of the subject matter. It is not claimed tbat defendants were not brought into‘court by tbe ordinary service of summons or notice. These instructions do not deny but tbat defendants might appear by attorney and confess judgment, and a judgment so rendered, upon such confession, would be regular. But because tbe name of tbe attorney does not appear in tbe record, therefore, tbe judgment cannot be collected here. It must be concluded tbat tbe appearance of tbe defendants amounts to tbe same, whether in person or by attorney. This record does show tbat defendants appeared by attorney. There is no- evidence to contradict tbe fact, and tbe record must therefore be taken as true. See Shumway v. Stillman, 6 Wend. 447; Patterson v. The State of Indiana, 2 G. Greene, 492. Tbe reasoning used in tbe latter case, is entirely applicable to tbe case at bar. See also Fields v. Gibbs, 1 Pet. C. C. 155; Hall v. Williams, 6 Pick. 232; Hoxie v. Wright, 2 Vermont, 263.

So far as tbe question is concerned at this time in this court ’(however it may be in an appellate court of Indiana), we regard it immaterial whether any attorney, other than Maybew, appeared. It is shown tbat be produced tbe power of attorney, and tbat its execution by tbe defendants, was duly proven by competent evidence, to tbe satisfaction of tbe court. Tbe further entry, tbat another attorney, after such proof, appeared and waived errors and confessed judgment, we cannot but regard more a matter of form, than as going to tbe substance, so far as relates to tbe examination of it in our courts. Eor it must be borne in mind, tbat if tbe judgment was simply erroneous, and not void, it would be valid here upon its face. But suppose tbis record bad-said tbat said defendants appeared bj attorney, without pretending to set forth bis name, would not the judgment un-impeached, be valid here ? We can see no reason why it would not. Says the court in the case of Shumway v. Stillman, above cited, that if the record of the judgment states the fact, that defendant did appear by attorney, that is suf-' ficient evidence of the fact, until contradicted, and that, of course, by proof. To allow parties to avoid judgments rendered in other states, for such technical and unfounded reasons, would be to entirely destroy the faith and credit due to judicial proceedings, and leave nothing to intendment or presumption, but require proof of that which all our courts concede to b g prima facie true, if not conclusive.

Next as to the proof of the assignment. And here the first question that arises, is, can a judgment be assigned, so that the assignee thereof can sue thereon in his own name ? We hold he can. When assigned, he is the party in interest, and under our Code, the suit must be brought by the real party in interest. Section 1676. To hold otherwise, would be to allow a suit to be prosecuted in the name of a party not having an interest in the subject matter, which is not permissible bjr the spirit or the letter of our law. The assignee, of course, takes it subject to any defences which the judgment debtor may have against it. In this view, and this right being so protected, the defendant cannot object ; and we see no reason in principle, why such assignee is not the proper person to prosecute the suit in his own name. See upon this subject, the cases of Ford v. Stuart, 19 Johns. 342, and Bridge v. Johnson, 5 Wend. 342.

Then, should this assignment have been proved, not having been denied under oath. By an act, approved January 24, 1853 (Laws of 1853,187), itis provided, that in all actions then or thereafter to be instituted in our courts, upon any note, bill, bond, or other evidence of debt or liability, it shall not be necessary to prove the execution or assignment of the same, unless such execution or assignment is specifically denied by defendant under oath. We think this statute is decisive 'upon this question. This judgment may be said to be both an “ evidence of debt,” and a “liability,” and as such it was not necessary to prove the assignment thereof, until denied under oath. This assignment was not denied under oath, and therefore the court below erred in giving the third instruction asked by defendant, and refusing the instruction asked by plaintiff. We do not, of course, mean that it was not necessary that the assignment should appear on the transcript or record, but what is meant, is, that if there was what purported to be an assignment, no proof was necessary to show its execution, until the same was denied under oath.

Judgment reversed.