54 Ill. App. 596 | Ill. App. Ct. | 1894
delivered the opinion of the Couet.
November 4, 189-3, the last day of the October term, in the Superior Court, judgment by confession was entered in favor of Goit against Charles Kuehne and his mother, Angelica Kuehne, upon a promissory note with warrant of attorney attaphed, as follows:
“ Chicago, October 11, 1892.
One year after date, for value received, we promise to pay to the order of John Mathias Bredt $2,000, at his office, 137-139 State street, with interest at 6 per cent per annum after date until paid.
And, to secure the payment of said amount, we hereby authorize, irrevocably, any attorney of any court of record, to appear for us in such court, in term time or vacation, at any time after maturity, and confess a judgment, without process, in favor of the holder of this note, for such amount as may appear to be unpaid.
Angelica Kuehne, Surety.”
Chaeles Kuehne.
December 5, 1893, the second day of the December term, the defendant below moved to set aside that judgment upon affidavits showing that she was merely a surety, and that Charles, having been in partnership with Bredt, was induced by false and fraudulent representations made by Bredt as to the condition of the firm, to buy him out, giving this note, for which there was in fact no consideration.
Charles stated in his affidavit that on the 6th and 7th days of November, Goit told him that the note was put into his hands by Bredt for collection; that it had been taken out of his possession a few days before; that he did not know what had become of it.
That affidavit further states that the affiant believes that the judgment was entered in the name of Goit, without his knowledge, for the benefit of Bredt,
On behalf of Goit were affidavits of Goit himself, of Bredt, and of Carl Moll, cashier of the National Bank of Illinois, showing that before maturity the note was indorsed to the bank as collateral security for a larger indebtedness, still unpaid, of Bredt, to the bank; that Goit was a book-keeper in the bank, and the judgment was entered in his name for the benefit of the bank.
Goit denied the conversation alleged by Charles, and stated that, not knowing the facts in regard to the note, he had referred Charles to the assistant cashier.
All objections for irregularities, if there be any, in entering the judgment, are too late; only for reasons affecting the justice and equity of the judgment can it beset aside at a term after it was entered. Packer v. Roberts, 40 Ill. App. 445.
Nevertheless, we will consider the objections made.
First, that the warrant is to “ any attorney of any court oE record,” and that there is no such attorney as " Walker & Walker” who signed the cognovit.
We maybe mistaken in our conjecture that £‘Walker <fe Walker ” means two persons. No law would forbid parents named Walker naming a child ££ Walker &.” In Cromwell’s time during the French Revolution stranger names were in use, and the Superior Court is presumed to know the members of the bar practicing there. Crane v. Nelson, 37 Ill. App. 597.
In any case the objection is of no merit. Zimmerman v. Wead, 18 Ill. 304.
The objection that Goit had no interest in the note is by the brief of the plaintiffs in error subdivided into seven,! heads, but is answered by the fact that the bank held the note under an indorsement in blank by Bredt. Filling up such an indorsement is mere form, and may be wholly omitted. Trainer v. Adams, 54 Ill. App 523.
The holder under such an indorsement may sue in the name of any person who consents. Law v. Parnell, 7 C. B. N. S., 282, 97 E. C. L. 281.
By the affidavits filed on behalf of Goit, and such affidavits were admissible (Truby v. Case, 41 Ill. App. 153), it is made to appear so clearly that there can be no reasonable doubt of it, that the bank was a bona fide holder of the note, for value, deriving its title by indorsement of the payee before maturity.
In such case the makers, however much they were wronged by the payee, can have no redress or relief at the expense of the assignee. Thayer v. Richard, 44 Ill. App. 195.
The judgment is affirmed.
