3 Or. 24 | Clackamas Cty. Cir. Ct., O.R. | 1868
filed the following opinion.
It is claimed that the confessions in these cases are irregular, for want of a statement of facts in compliance with section 252 of the code. The code recognizes two modes of confessing judgment, namely, “without action” and “in an action pending.” In the former, “the confession shall be made, assented to and acknowledged, and judgment given in the same manner' as a confession in an action pending;” and it “shall state plainly the facts out of which the indebtedness arose.” I cannot think that the statute requires (¡lie same statement of facts to be contained in the judgnent where the confession is made “in an action pending.” It seems that such statement is to stand in the place
When an action is commenced, and a complaint filed, which would be good on demurrer; and the defendant confesses its truth, and otherwise complies with the statute, it is not required to make the statement mentioned in section 252.
In regard to the authority of the president of a corporation to confess a judgment, section 218 designates that officer as one competent to make the confession; and I think there is no rule of law that will require him to place on file, or to exhibit evidence of his being specially directed or authorized in the particular case by the directors, or other power of the corporation. If he should act wholly without such direction, and even against the interest of the corporation, it is doubtful whether any one except the corporation could raise the objection, unless by a bill in chancery. Another question is, whether fraud in the confession of the judgment, not appearing on the record, can be set up by motion and tried upon affidavits.
I am satisfied upon examination of authorities, that a junior judgment creditor is entitled to obtain relief upon motion, where the record shows that a judgment by confession has been irregularly entered. But it is not clear that a charge of actual fraud in procuring the confession, not supported by the record, ought to be tried upon motion and affidavits; none of the authorities cited go to that extent.
The trial of a disputed question of fact upon affidavits, to the exclusion of all benefit of cross-examination, is at the least, a most unsatisfactory mode, and if ever permissible as a means of establishing fraud in fact, it should only be resorted to in plain and indisputable cases.
A charge of actual fraud in procuring a judgment by confession, not supportedjby the record, should not be finally determined upon motion and affidavits.
Whether one who is a director can sue the corporation in which he holds that position, is a question raised in this case, but no authorities are cited in opposition to such proceeding.
Although he is bound by a vote of a majority, even when he dissents, this is not»the case when he claims on a contract, in which he is one party and the corporation another. (Revere v. Boston Copper Co., 15 Pick. 363.)
It does not appear affirmatively but that the president acted by the direction of the directors.
I think the proceedings’ are not shown by the record to be irregular, and that the matters set up by affidavit do not warrant the court in determining, upon motion, that the j adgments are fraudulent in fact. These motions must, therefore, be denied.
According to section 293 of the code, objection to confirmation of the sale can only be made by ‘ ‘ the judgment debtor, or, in case of his death, his representative.” As mere judgment creditors, not parties to the action, George and Charles Miller cannot appear in this motion.
As no competent party has filed objections, the sale must be confirmed.
