181 Ind. 491 | Ind. | 1914
Action was begun September 23, 1910, and an amended complaint filed May 1, 1911, on a judgment in favor of appellant, a resident of Illinois, against a resident of Indiana, rendered in term in the Municipal Court of the city of Chicago. There was an answer in general denial, but withdrawn before demurrers to the second and third paragraphs, the ruling on which and on the motion for a new trial, are the errors assigned. The errors assigned are joint as to the second and third paragraphs of answer, and both must be bad to present any question under such assignment. Hague v. First Nat. Bank (1903), 159 Ind. 636, 65 N. E. 907; Saunders v. Montgomery (1895), 143 Ind. 185, 186, 41 N. E. 453, and cases cited.
The demurrers were several and for insufficiency of facts. It is urged by appellee that the answers cannot be considered, for the reason that no memoranda of the objections was filed with the demurrers, under the provisions of the act of 1911 (Acts 1911 p. 415, §344 Burns 1914, subd. 6.) This action was pending when the above act was passed, and is excepted by the fourth section of the act.
The complaint counts on a judgment rendered July 10, 1910, in the Municipal Court of the city of Chicago, on a promissory note executed at Gary, Indiana, May 23, 1910, payable to the order of one Argus, due in thirty days, payable “at Gary, Indiana or elsewhere,” in the body of which is an irrevocable power of attorney authorizing any attorney of any court of record, to appear for the maker in such court, in term or in vacation, and confess judgment without
The second paragraph of answer attempts to plead fraud in the execution of the note, claiming inability to read English, and that he had leased a building to the payee who prepared and presented to him what turned out to be the promissory note in question, which was falsely and fraudulently represented to him to be a receipt for the money he had received as the rent, and that he would not have signed it, had he known it was a prbmissory note, but that he relied on the representation that it was a receipt for the rent; that there was no one present whom he could call to read the note; that he had been for five years a resident of Indiana; that he was not served with process, and had no knowledge of the proceedings in Chicago, and did not appear, and did not authorize any one to appear for him; that the note was secured from him without consideration; and that the judgment was rendered pursuant to, and by virtue of the alleged power of attorney (set out in the complaint and answer) and not otherwise. Prayer for cancelation of the note and for all other proper relief follows.
The third paragraph of answer is the same as the second with respect to the consideration for, and conditions surrounding the execution of the note, but alleges the taking of the judgment by virtue of the power of attorney contained in the note, by virtue of a confession of judgment by one Falk, and not otherwise; that he was never a resident of Illinois, was not served with summons by any officer of the Municipal Court of the city of Chicago, and had no notice
The sufficiency of the answers must be determined by reference to the complaint and the questions presented by the foreign judgment. The only evidence under the complaint, is the authenticated copy of the proceedings in Chicago, showing formal appearance of appellant by attorney, and waiver of service of process, proof of the session laws of Illinois conferring jurisdiction on the Municipal Court of Chicago, and the same clause pleaded in the complaint, as to the authority to appear and to enter judgment by confession, and testimony that no part of the judgment had been satisfied. Under the answers, the only evidence was that the defendant had lived twelve years in Indiana, four years in Gary. The original note was read in evidence, and appellee testified that he signed it at his home in Gary, Indiana, that his wife was present; that he never saw Samuel B. Falk (the party who appeared and confessed the judgment) ; that he knew nothing about,the suit in Chicago; that he never employed Falk or authorized him to enter an appearance for him; that he could not read or write English, but can read and write Hungarian only. Upon this state of the record, there was a finding for the defendant, and over motion for new trial, judgment against appellee, upon the theory that the judgment in Chicago was void, because the note was made in Indiana and the maker was a resident of Indiana when the note was executed and when the judgment was rendered. It is not to be doubted that cases involving the peculiar public policy of a state with respect to matters of a purely domestic character, such as marriage and divorce, do not present the same
This is but another form of saying that the court may inquire into the character of the action, for the purpose of determining whether its subject-matter is contrary to the public policy of the local jurisdiction, or to see that it is of such character as that there is jurisdiction of the subject-matter, and that jurisdiction of the person of the defendant was obtained. Thompson v. Whitman, supra.
The serious question in the ease is whether the power could be executed in Illinois. The note is payable “at Gary, Indiana, or elsewhere.” It is assignable by statute. §9071 Burns 1914, §5501 R. S. 1881. What is meant or intended by the phrase “at Gary, Indiana, or elsewhere”? It has been held that a note executed in this State, and payable “at a bank” means a bank in this State. Union Trust Co. v. Adams (1913), 54 Ind. App. 166, 101 N. E. 741; Fordyce v. Nelson (1883), 91 Ind. 447; Dutch v. Boyd (1881), 81 Ind. 146; Walker v. Woolen (1876), 54 Ind. 164, 23 Am. Rep. 639. Or, if suit is brought
While the question has not been expressly decided, it is the acknowledged public policy of this State, not to recognize powers of confession in promissory notes, and that seems to be the public policy as declared by the statute in respect to confessions of judgment, §615 Burns 1914, supra, requiring that in order to a valid execution of such power, there must at the time of its execution, be an affidavit made, and this by necessary implication excludes the method employed in the case at bar.
At common law, the warrant of attorney was distinguishable from cognovit, and might accompany a note or bill as a part of the security, but was no part of the bill proper. The warrant of attorney was under seal, while a cognovit need not be. Chitty, Gen. Prac. 670; Bell v. Banks (1841), 42 Eng. C. L. R. *258; Dillon v. Rimmer (1822), 7 Moore 427; Dillon v. Rimmer (1822), 1 Bing. 100; Keep v. Leckie (1855), 8 Rich. (S. C.) 164; Norris v. Aylett (1809), 2 Camp. 329; Bouvier, Law Dict.; Anderson, Law Dict. Either a cognovit, or warrant of attorney, is revoked by death. Calvert v. Tomlin (1828), 5 Bing. 1; Blackburn v. Godrick (1841), 9 Dowl. 337. Except for a statute, it has been held that a cognovit could not be entered after the death of the plaintiff where two terms had elapsed. Lewis v. Rapelyea (1847), 1 Barb. 29. But if the power ran to several, and one of them dies, within two terms, by statute no revivor is necessary to authorize judgment in favor of the original plaintiff. Gilbert v. Corbin (1836), 18 Wend. 600.
The court did not err in its judgment, which is affirmed.
Note. — Reported in 104 N. E. 851. As to the validity of judgments by confession, see 64 Am. Dec. 501; 99 Am. Dec. 275. As to the validity at common law of a warrant of attorney to confess judgment, see 40 L. R. A. (N. S.) 956. As to the law governing warrant of attorney to confess judgment, see 38 L. R. A. (N. S.) 814. As to the conflict of laws as to bills and notes, see 61 L. R. A. 193; 19 L. R. A. (N. S.) 665. As to the validity, in absence of statute, of a provision in a note authorizing an attorney to appear and confess judgment against the maker, see 16 Ann. Cas. 895.