| Ill. | Jun 15, 1891
delivered the opinion of the Court:
Section 66 of the Practice act provides that “any person, for a debt bona fide due, may confess judgment by himself or attorney duly authorized, either in term time or vacation, without process.” The word “debt,” in this statute, is used as indicative of a sum certain that is owing from one person to another. This is manifest from several considerations. In the first place, the confession of judgment contemplated by said section is a confession of judgment in a proceeding instituted “without process,” and therefore has no reference whatever to a cognovit actionem, or confession of judgment signed by the defendant in the action after suit brought, and which was resorted to, at common law, in many different kinds of actions; and at common law, a confession of judgment without process, or any action pending, was by means of a warrant of attorney, and, unless the amount was mentioned in the warrant itself, was restricted to notes, bills, bonds or other instruments or evidences of indebtedness wherein the amount for which the judgment was to be confessed was so specified that it could readily be determined by mere inspection or computation, and' did not require judicial.inquiry for its ascertainment. In the next place, the judgments provided for in the section are such as can be entered indifferently, “either in term time or vacation,” and the authority to enter the judgments by confession is just as broadly given to the clerk acting in vacation as it is to the court acting in term time, and it needs no argument to show that the clerk is not invested with, and can not, under the constitution, be lawfully invested with, power to ascertain, from evidence dehors the instruments filed, the amounts for which judgments are to be entered. The clerk merely has authority to examine the papers presented to and filed with him, for the purpose of ascertaining that the formal requirements of the law have been complied with, and that only, and has no power whatever to investigate further, or adjudicate the amount due.
In the case at bar, the authority specified in the warrant of • attorney contained in the lease is “to waive process and service thereof,” and “to confess judgment from time to time for any rent which may be then due by the terms of this lease, with costs, and to waive all errors and all right of appeal from any such judgment or judgments.” It is to be noted, that the power delegated is not to confess judgment for the $36,000 rent covenanted in the indenture to be paid, or judgment for any specified installment of $300, or even judgment for any installment of $300, or installments of $300 each, or part or parts of such installment or installments of $300 that may be ■due and unpaid, but “to confess judgment from time to time for any rent which may be then due by the terms of this lease.” And it is also to be noted, that by the terms of the lease it is expressly stipulated that all amounts paid by the lessor for water rates and gas bills, and for keeping the demised premises and appurtenances in a clean and healthy condition, shall be “so much additional rent,” and due and payable as such.
It is manifest that in this case, and in view of the fact that .amounts paid out by the lessor for water rates and gas bills, ■and for keeping the premises in a clean and healthy condition, are expressly made “so much additional rent,” and “rent due by the terms of the lease,” there must, necessarily, be a judicial investigation, and hearing of evidence other than that afforded by the lease itself, in order to determine the amount ■of “rent due by the terms” of the indenture. This must be so, unless it can be said that the lease and warrant of attorney in the case give authority to the lessor or his attorney to adjudicate and fix the amount due, or give such authority to “0. H. Bemy, or any attorney of any court of record in this State.” It would be absurd to contend that such unrestricted power was given to the creditor or Ms attorney, and a rule such as that would be in the highest degree productive of fraud and subversive of justice, and would be tantamount to making one ■of the parties in interest not only both plaintiff and defendant, but court also,—and that, too, in his own cause. And that such authority was vested in “Bemy, or any attorney of any court of record in this State,” would stand, in its practical results, upon substantially the same, footing, since the lessor and creditor would have the option of selecting the attorney to represent the lessee and debtor.
The authority that was here exercised by the attorney acting under the power claimed to be donated by the warrant of attorney, was a power to confess a judgment against the donor of the power for an uncertain, unliquidated and unlimited amount of money paid out for water rates and gas bills, and for cleaning the demised premises and appurtenances and keeping them in a clean and healthy condition, to say nothing of any element of uncertainty that might arise in respect to what portion of the stipulated $36,000 was unpaid. A power so unrestricted can not lawfully be either given or exercised. Though a demand be ever so just, a party ought not to be permitted to coerce payment without the sanction of judicial authority. To hold the power valid, and that the attorney might waive all errors and all right of appeal, would be to open the business transactions of men to infinite abuse. On grounds of sound public policy we are not disposed to extend the power of confessing judgments under and by virtue of warrants of attorney beyond the provisions of the statute and the decisions in the adjudicated cases.
It is claimed by counsel for defendant in error that there is no more presumption that the face of a promissory note remains unpaid than that the stipulated rent in a lease remains unpaid. It is claimed by counsel for plaintiffs in error that after a most diligent search they have been unable to find any reported case where judgment has been entered for rent on a lease by confession under a warrant of attorney. Be these several contentions as they may, they are not of controlling importance here. The rent covered by the power contained in this lease includes not only the $36,000 and the installments of $300 each mentioned in the indenture, but also the unliquidated sums that may be paid by the lessor for water rates, for gas bills and for keeping clean and in a healthy condition the demised premises and appurtenances, and therefore the question whether a power to confess judgment for installments of a certain and fixed rent, and for such installments only, is a valid power, does not arise in the case, and for that reason we refrain from the expression of an opinion in regard thereto.
A case that is here much in point, is that of Nichols v. Hewit, 4 Johns. 423" date_filed="1809-08-15" court="N.Y. Sup. Ct." case_name="Nichols v. Hewit">4 Johns. 423. There a judgment was entered on the confession of a party for such sum as A and B should award, before the award was declared, and it was held that the judgment was bad, and reversible on error. The court there said that a confession of judgment ought to be for a certain and specified sum, and that there was no power to enter judgment' on a cognovit for an uncertain and unliquidated amount. If a' party can not, by his own cognovit actionem, and after suit brought, confess judgment for an uncertain sum, it would seem that he can not, where there is no action pending, by a warrant of attorney authorize another to confess judgment for an uncertain and unliquidated sum.
Our conclusion is, that the warrant of attorney contained in the lease here in question attempted to authorize a proceeding which was unknown to the common law and not contemplated by the statute, and that the judgment of the court based on said warrant of attorney was coram non judice, and void.
The view we have taken of the case obviates the necessity of considering numerous other objections to the judgment that are suggested in the briefs and arguments of counsel.
The judgments of the Appellate Court and of the Superior Court are reversed. The cause is remanded to the latter court, wfith directions to allow plaintiffs in error to plead to the declaration.
Judgment reversed.
Wilkin and Bailey, JJ., dissenting.