62 Ala. 218 | Ala. | 1878
“A confession of judgment is in law a release of errors.” — Code of 1876, § 3945; Revised Code, § 3504; 2 Brick. Dig. 138-9, §§ 116, 117, 118, 123. In the present case a judgment was voluntarily confessed for money, and the case is thus made to assume the form and quality of a civil suit. It does not avail, to avoid a confessed judgment, that there are no pleadings or process, or that the same are
It is recited in the judgment entry, that “ the said Yan McDowell, C. C. Hearn and H. P. Fisher having waived all right of exemption as to personal property under the constitution and statute laws of the State of Alabama,” it was thereupon “further ordered that the clerk of this court endorse the fact of said waiver on any execution which may issue on said judgment for the collection of the same.” The appellants here contend that this is not a waiver of exemptions under the constitution and statute, because it is not made by an “instrument in writing.”- — Constitution of 1875, Art. 10, Sec. 7; Code of 1876, sections 2846 to 2850 inclusive. The question, how far the recitals in judgments by confession bind the parties, has been several times before this court. Intendments in favor of such judgments have always been liberally indulged. In fact, the rule universally observed in this court, in reviewing judgments of courts of general jurisdiction, is, to presume every thing was rightly done in the inferior court, unless the record shows the contrary. In the case of Bissell v. Camille, 6 Ala. 503, the suit was commenced by original writ. The evidence of- service was an acknowledgment, bearing the partnership signature, Bissell & Camille. The judgment entry was in the following language : “ This day came plaintiffs by their attorneys, and the defendants bv Joseph P. Saffold, to whom a power of attorney was executed to confess a judgment in this case — which power of attorney is filed with the papers in this cause — confesses a judgment in favor of the plaintiffs,” &c. A power of attorney was found in the transcript, purporting to have been executed by the defendants, corresponding with that described in the judgment, subscribed in their firm name, with a seal set opposite. It was objected that it did not appear that the parties were properly before the court. It was conceded that the acknowledgment, without proof of its execution, did not bring the parties into court. This court added. “But in the present case the defendants appeared, and this was sufficient to cure either the want of or defective execution of the writ. * * The execution of the letter of attorney in the firm name, is no objection to the authority which it confers; for, from any thing appearing to the contrary, both the defendants may have been present, and if both did not actually execute it, yet they may have adopted it as their joint act. The judgment would have been more
We do not, in this case, decide whether it is essential to the waiver of exemption of personal property, that there shall be an actual “instrument in writing.” Possibly we would hold, if necessary to the decision, that, like a recognizance, the recital in the judgment entry must be treated as a contract by matter of record. But, following the authorities cited above, we presume every thing in favor of the correct ruling of the primary court, which the record does not disprove; and hence, we presume there was executed an instrument in writing, expressing the waiver, if such instrument be necessary. The present record does not inform us whether or not there was such written instrument signed.
Judgment affirmed.
