Pirie v. Stern

97 Wis. 150 | Wis. | 1897

"Wiitslow, J".

Two principal contentions are made by the intervener upon which the order setting aside the plaintiffs’ judgment is sought to be justified: First, that the judgment note did not authorize the entry of judgment thereon in Wisconsin, but only in Illinois; and, second, that the including of ten per cent, attorney’s fees in the warrant rendered it fraudulent and void as to creditors.

1. It is well established that “ the authority to confess a judgment without process must be clear and explicit, and must be strictly pursued.” Manufacturers & M. Bank v. St. John, 5 Hill, 497. We think, however, that it would be a very great surprise to the profession to learn that a general power of attorney purporting to authorize the entry of judgnient in any court of record does not in fact authorize the entry of judgment in any state save the state in which the note is given. Such, certainly, has not been the prevailing idea as to the law on this subject, as is well proven by the numerous instances of the entry of such judgments, without objection, in the courts of this state, upon warrants similar to the one in suit executed in other states. • The judgment note is now in wide use, and is recognized as a very convenient and valuable security in the business world. Tho business relations between the various states are very close, and growing closer every year; and if it be true that a judg-' ment note in general terms, taken in one state, cannot be used in another, then, certainly, its usefulness will be very seriously impaired. Two decisions only, so far as we know, justify this contention, viz., Carlin v. Taylor, 7 Lea, 666, and Davis v. Packer, 8 Ohio Cir. Ct. 107.

In the Tennessee case it was held that a warrant authorizing any attorney in the United States or elsewhere to confess judgment was void for “ comprehensive uncertainty.” The Ohio case holds that a general power of attorney executed in Illinois authorizing the entry of judgment in any court of record does not authorize the entry of judgment in an Ohio court. We are not satisfied with the reasoning in either of these cases. We are unable to see any reason why a debtor may not give a general warrant of attorney to his creditor authorizing the entry of judgment in “ any court ” that the creditor may choose, and why such power should be held void as comprehensively uncertain is not clear. The very fact that judgment may be entered in one state as well as another gives added value to the security, and was doubtless intended so to do. Certainly, when the warrant authorizes the entry of judgment in “any court of record,” the authority given is clear and explicit enough to satisfy the most fastidious. The power is very broad and sweeping, but it is at the same time clear and explicit.

The case of Manufacturers' & M. Bank v. St. John, supra, was also cited as sustaining the proposition that no judgment could be entered on this warrant in Wisconsin. This case simply decided that when a warrant showed on its face that it was only intended to be used in Pennsylvania, it could not be executed in New Tork. This doctrine is entirely reasonable. If a power 'of attorney drawn in general terms contain also provisions plainly showing the intention to limit the execution to one state, it would certainly seem proper to construe the general words as being limited by the special provisions. Freeman, Judgments, § 545. We find in the warrant before us no satisfactory indication of an intention to limit its operation to the state of Illinois. The waiver of the benefits of the Illinois exemption laws can hardly be construed as such a limitation. The circumstances under which the note before us was executed would very clearly rebut any such intention. It was executed by merchants who were residents of and doing business in Wisconsin, and who were simply in Chicago for the purpose of buying goods. An intention to limit the operation of the warrant to the state of Illinois would not be reasonable or probable. We conclude that the warrant authorized the entry of judgment in Wisconsin.

2. Did the including of ten per cent, attorney’s fees in the warrant and judgment render both void as to creditors? This question must also be answered in the negative. Such stipulations, when reasonable in amount, have been held valid by this court. Vipond v. Townsend, 88 Wis. 285; First Nat. Bank v. Larsen, 60 Wis. 206. It is true that it is also held in the case last cited that such a stipulation is not conclusive as to amount, but that a reasonable amount must be fixed by the court or jury on the trial. The question here, however, is whether the judgment will be set aside simply because the attorney’s fee was not assessed by a court or jury. Upon familiar principles, it will not be set aside unless it be shown to be unreasonable or inequitable, as well as irregular. We see no evidence of actual fraudulent intent here, and we do not understand that the trial court found actual fraud, but simply that the including of the attorney’s fee was a gratuity given by an insolvent debtor to a creditor, which rendered the whole security void as a matter of law. In this conclusion we cannot agree. An insolvent •debtor may give a valid judgment note to his creditor if the transaction be free from fraud, subject, however, to the provisions of law relating to the setting aside of such transactions when they take place within sixty days prior to the ■execution of a voluntary assignment. S. & B. Ann. Stats, sec. 1693a. If a valid judgment note can be given, certainly it may include the provisions which such notes usually contain, and the provision for an attorney’s fee is one of those provisions. If it were shown that the attorney’s fee was unreasonably large, or was a mere cloak for a fraudulent transfer of property without consideration, the question would be different.

No other questions are presented which are important enough to require discussion.

By the Court.— Order reversed, and action remanded with directions to deny the motion.