Kahn v. Lesser, 97 Wis. 217

Kahn v. Lesser

97 Wis. 217 | Wis. | 1897

PinNey, J.

The judgment in this case must stand, if at all, by the authority of the statute. The proceeding by •which it was entered was outside and in derogation of the common-law practice of courts, and the statute, as well as the proceedings under it, must be strictly construed. Sloane v. Anderson, 57 Wis. 131; Freeman, Judgments, § 543, and cases cited in note 2. It is well settled that the authority to confess a judgment under a warrant or power of attorney must be strictly construed. An instrument delegating such, power is ordinarily subjected to a strict interpretation, and the authority will not be extended beyond that given in terms, or which is necessary to carry into effect what is expressly given. Craighead v. Peterson, 72 N. Y. 279; Manufacturers & M. Bank v. St. John, 5 Hill, 500; Baldwin v. Freydendall, 10 Ill. App. 106; Reed v. Bainbridge, 4 N. J. Law, 351; Spence v. Emerine, 46 Ohio St. 433; 28 Am. & Eng. Ency. of Law, 690, § 4; Chapin v. Thompson, 20 Cal. 681; Grubbs v. Blum, 62 Tex. 426; Morris v. Bank of Commerce, 67 Tex. 602. The rule was well settled at an early day in Hunt v. Chamberlain, 14 Am. Dec. 427, upon the authority of Lord ElleNboeough, in Gee v. Lane, 15 East, 592, where a warrant of attorney was joint, and a motion was made after the death of one obligor in the bond to enter judgment against the survivor, but he refused, saying: “An-action to be brought against us” means a'joint action. “An authority by two to enter judgment against us will not warrant judgment against one alone. The authority must be pursued. Ve cannot violate it.” Raw v. Alderson, 7 Taunt. 453. In Manufacturers & M. Bank v. St. John, 5 Hill, 500, the court said: “Although the bond is joint and several, I am strongly inclined to the opinion that the warrant will only authorize a joint judgment against all the obligors. The power is * to appear for us and each of us in an action of debt, to be brought against us and each of us? If the parties intended to authorize a several judgment *222against each obligor, they have been unfortunate in the choice of language to express their meaning.” The rule thus early announced in Gee v. Lane, 15 East, 592, has been quité generally adhered to, and we think it is sound in principle, although in Croasdell v. Tallant, 83 Pa. St. 193, which was the case of a joint and several note against three persons, and & joint warrant of attorney, and one of the makers died, the court refused to set aside a judgment entered on such warrant against the two survivors. The case under consideration is one of an agent constituted for a particular purpose and under a limited power, and he cannot bind the principal if he exceeds that power. The special authority must be strictly pursued. 2 Kent, Comm. *621, note- b. The notes in the present case weve joint notes, and the warrants of attorney weve joint. Within the cases cited, it is considered clear that the judgment was entered against Lesser without lawful authority for that purpose, and void.

It was conceded in the complaint on which the judgment was entered that a,ny action on the notes for the amount then claimed to be due thereon as against Wisotzky was barred by the statute of limitations, but not barred, as it was claimed, as to the appellant, Lesser, by reason of his departure from the state before the statute had run on them as to him, and his continued residence out of the state thereafter. Beliance is placed on the fact that, under the warrants of attorney, the attorney for the defendant, acting under them, by his answer admitted these allegations of the complaint, as well as the other allegations. Both notes upon their face were prima facie barred as to Lesser when the judgment was entered against him. The warrants authorized the entry of judgment upon the notes for the sums named therein, “ or for so much as shall appear to be due according to the tenor and effect thereof,” and interest to the date of entry of judgment. According to the tenor and effect of the notes, all remedy thereon had been barred, and *223all right of recovery extinguished. The defense of the bar of the statute could not be waived by an attorney by virtue of warrants attached to the notes. Walrod v. Manson, 23 Wis. 393; Brown v. Parker, 28 Wis. 21. Nor could the attorney waive any defense the defendants or either of them might have to the notes, by admitting any matter that the plaintiff might choose to put in his complaint. Absence of the appellant, Lesser, from the state was not material, and did not in the least interfere with or prevent the entry of judgment upon the notes and warrants of attorney, although it might form a good answer to the claim that the notes were barred in a regular action brought upon them in which the statute had been pleaded. But in this special proceeding to enter judgment upon the notes and warrants of attorney the allegation of absence from the state was wholly immaterial.

As to judgments confessed on warrants of attorney there is an extensive collection of authorities in a note to Teel v. Tost (128 N. Y. 387), in 13 L, R, A. 796. — Rep.

As the control which courts exercise over judgments entered in special proceedings upon warrants of attorney is of an equitable character, it has occurred to us that although the judgment was entered without lawful authority, upon independent proof of a debt still due and unpaid, the court might perhaps properly refuse to vacate the judgment upon the ground of illegality complained of; but no such showing was made at the hearing.

Eor the reasons stated, the court erred iu denying the motion of the appellant.

By the Court.— The order of the circuit court appealed from is reversed, and the cause remanded to that court with directions to grant the motion to vacate and strike off the judgment.