271 Mass. 186 | Mass. | 1930
This is a petition to vacate a judgment rendered in the Municipal Court of the City of Boston. It appear from the statement of agreed facts that the petitioners on June 11, 1926, gave to the Norfolk County Motors, Corp. or order a note for $1,384, promising to pay the amount in monthly instalments of $92.97 each, “the first payable one month after date.” It was stated in the note: “And. if allowed by law 15 per cent of the principal and interest of this note as attorney’s fees, if placed in the hands of an attorney for collection, and authority, irrevocably to any attorney-at-law to appear for me in any court, and waive the issue and service of process and confess a judgment against me in favor of the holder hereof.” The instrument came by indorsement to Lewis who was the plaintiff. No payments were made after December 16, 1926.
On February 18, 1928, the action, in which judgment is sought to be vacated, was commenced by a writ returnable to the Municipal Court of the City of Boston. Service was accepted thereon by W. Barton Leach, Jr., an attorney at law admitted to practice in the courts of the Commonwealth, hereafter called the attorney. He filed an answer on behalf of the petitioners, the defendants in the original action, confessing judgment in the amount declared on. The agreement was signed by the attorney on behalf of the petitioners and by Warner, Stackpole and Bradlee on behalf of Lewis, the present respondent. The attorney was in the employ of Warner, Stackpole and Bradlee. He had no authority to act for the petitioners except so far as authority was given by the instrument signed by the petitioners. They had no actual notice of the pendency of the action of contract until execution had been issued. The original action was begun by trustee process. The writ recited that the defendants
There is legislative sanction for such authority to confess judgment. G. L. c. 107, § 27, provides that “the negotiable character of an instrument otherwise negotiable is not
The stipulation in the instrument waiving the issue and service of process does not destroy the validity of the note. It is said in 3 Blackstone, Commentaries, 397, that “it is very usual ... to execute a warrant of attorney to some attorney named by the creditor, empowering him to confess a judgment . . . which judgment, when confessed, is absolutely complete and binding.” “How or when this
The petitioners contend that the Municipal Court of the City of Boston had no jurisdiction. G. L. c. 218, § 54. G. L. c. 223, § 2. The petitioners in their petition do not seek relief on this ground; they contend that the judgment should be vacated because no one was authorized to act for them and confess judgment. Because the action was in the wrong venue the court was not without jurisdiction under the warrant of attorney. The attorney consented to judgment, the court had jurisdiction, and the judgment cannot be vacated. Paige v. Sinclair, 237 Mass. 482, 485. No contention is made as to the amount of the judgment or that the attorney under the power exceeded his authority in confessing judgment in the sum of $1,083.65, that being the correct amount due on the note.
Order denying the petition to vacate the judgment affirmed.