Jemison v. Freed

50 So. 52 | Ala. | 1909

SAYRE, J.

In Hutchinson v. Palmer, 147 Ala. 517, 40 South. 339, it was held that, where one executes a note in which he embodies a power of attorney authorizing an appearance and confession of judgment on failure to pay at maturity, a judgment rendered in accordance with the power is as valid and binding as if rendered on service of process. Such powers are uow void. — Code 1907, § 4296. The cited section, however, does not affect the case in hand.

In the transcript of the docket of the inferior court, sent to the city court in response to a common-law writ of certiorari, there appears a copy of a note given by the defendant to the plaintiff, which contains the following-provision'. “Notice and protest on nonpayment at maturity is waived by each maker and indorser hereof, and suit may be brought hereon in any precinct in any county in Alabama. Each maker and indorser hereby authorizes any attorney at law to appear for him in any court in term time or vacation at any time hereafter and confess a judgment,” etc. It sufficiently appeared that judgment had been rendered on confession by an attorney at law without preliminary process to bring defendant into court. Let it be assumed that the note, a copy of which is to be found in the transcript, was the basis of the judgment confessed, that it was properly certified, and was therefore properly before the city court, and is now properly here. This appeal cannot be sustained. The case made cannot be distinguished on any‘substantial ground from that of Hutchinson v. Palmer, supra. The authority to bring suit in any precinct in any county in Alabama did not limit or impair the subsequently conferred power of attorney to confess judgment without preliminary process. The first stipulation refers to the venue of the judgment, and cannot be construed as a requirement that process issue; for the sole purpose of the second is to waive such process. The two stipulations cover distinct fields, and neither trenches upon the other.

We have considered the questions raised by the assignments of error and the argument of counsel, and find no error.

Affirmed.

Dowdell, C. J., and Simpson and Denson, JJ., con- ■ cur.