Ingalls v. Sprague

10 Wend. 672 | N.Y. Sup. Ct. | 1833

By the Court,

Sutherland, J.

Ingalls contended in the court below that the judgment in favor of Rogers could afford no protection to Sprague, unless he showed that he had authority from Ingalls to confess it. The court, however, decided that in this action that judgment was conclusive against Ingalls, without any proof of the authority of Sprague to confess it, and was a justification to the defendant. The court decided correctly. Upon the face of the record, the judgment appeared to have been confessed by both defendants, and the record is prima facie evidence of that fact. It was unnecessary for the defendant to support the judgment, until it was impeached. The record contained enough to give jurisdiction to the court. Shumway v. Stillman, 4 Cowen, 292. Latham v. Edgerton, 9 id. 227. 15 Johns. R 141. 19 id. 33, 162. But admitting that Sprague had no authority to confess the judgment, or did not prove it before the justice, it would undoubtedly be ground of error, but would not go to the question of jurisdiction, so as to render the judgment absolutely void. In Marlin & Chamberlain v. Moss, 6 Johns. R. 126, this court reversed a justice’s judgment, which had been entered by the justice on the written request of the defendant, but without any proof that the request was in the defendant’s hand-writing. The court say the justice could not legally enter a judgment, unless the defendant appeared in person or by ¡attorney before him in court, and confess judgment, &c. And in Bromaghin v. Thorp, 15 Johns. R. 476, they again reversed a judgment on the same ground ; they again held that a justice could not legally enter a judgment, unless the defendant appeared in person or ly attorney before him in court and confessed judgment, or had boon duly summoned. These cases show, 1. That a judgment in a justice’s court maybe confessed by attorney as well as by the defendant in person, and 2. That a judgment entered upon a writien request, without any appearance by the defendant before the justice either in person or by attorney is erroneous, and will be reversed, and therefore is not absolutely void. The authority of an attorney to appear may be by parol. Cowen’s Treat. 292. It is a matter in pais to be proved like any other fact in the case, and an error of the justice in relation to it may render the judgment erroneous, but does not go to the question of jurisdiction. In a court of record, if an attorney appear for a defendant, whether processh as been served or not, without his authority, and confess judgment, the judgment is regular and will not be set aside, but the attorney is liable to an action. Denton v. Noyes, 6 Johns. R. 296. Smith v. Stewart, 6 id. 34.

The evidence in relation to the judgment and execution was properly admitted under the pleadings. The declaration of the plaintiff stated that the trespass of the defendant consisted in turning out the plaintiff’s property upon an execution. It was competent, I think, for the defendant to give the judgment and execution in evidence, without any special notice, after such an admission on the face of the pleadings.

Judgment affirmed.