21 Mo. 557 | Mo. | 1855
Lead Opinion
delivered the opinion of the court.
This was a suit upon a judgment of the Inferior Court of Common Pleas of Sussex county, in the state of New Jersey. The judgment was confessed by virtue of a power given by the debtor.
The defendant, in his answer, says he has no recollection or knowledge sufficient to form a belief whether any such judgment as described in plaintiffs’ petition was ever recovered against him. He says that it appears by a pretended transcript of such judgment, now on file as an exhibit, that one Herman S. Heckman, as the agent of said plaintiffs, caused said judgment to he entered against this defendant, by virtue of a certain pretended judgment bond. Defendant denied ever having executed such an instrument as described in said transcript, on which it is stated said judgment was entered ; and avers that if his name appears to any such instrument of writing, as mentioned in said judgment bond, the same was obtained by fraud and without his knowledge of its contents, and denies being indebted to plaintiffs. The cause was submitted to the court for trial without a jury, and the court found that the plaintiffs did recover of the defendant the judgment set out in the petition as the same is charged in the petition ; that said judgment still remains in full force unreversed and unsatisfied, and that there has -been paid on said judgment only the sum stated in the petition ; that the bond on which said judgment was recovered was executed by the defendant, and the same was not obtained nor was his signature thereto obtained by fraud or without defend
The defendant moved the court to set aside its finding of the facts and its decision thereon, and grant a review and rehearing of the cause. This motion was overruled, and the case is brought here by appeal.
The record shows that on the trial the plaintiff offered in evidence, to sustain the issues on this point, the revised code of New Jersey, and an exemplification of a judgment on which the suit is founded. The defendant objected to the introduction of the exemplification of the judgment, and assigned as reasons specially, among other matters, that it was not sufficiently authenticated by the 'clerk or 'by the judge of the court from which the same purports to come ; but the court overruled his objection and admitted the exemplification'in evidence, to which defendant excepted. This was all the evidence in the case.
The only questions, then, which can legitimately arise in this case, involve the correctness of the opinion of the court below, by which the exemplification of the judgment was received as evidence.
The defendant contends that there is a variance in the style of the court upon whose judgment this suit is brought, as set forth in the plaintiffs’ petition, and in the exemplification offered in evidence.
Let us examine this matter and see if there be any such variance as may be considered material. The plaintiffs, in there petition, state that they, James J. Randolph and Carman Randolph, by the consideration and judgment of the Inferior Court of Common Pleas in and for the county of Sussex, in the state of New Jersey, recovered against said defendant the sum, &c. The exemplification of the judgment commences thus : " Sussex County Court of Common Pleas, of the term <of November, one thousand eight hundred .and forty-five.
The defendant’s appearance to this action is entered and judgment confessed, &c., for the sum mentioned in the above obligation, by virtue of the warrant of attorney thereto annexed, and pursuant to the direction of an act entitled “ an act directing the mode of entering judgment on bonds with warrants of attorney to confess judgments.” Then follows the formal recovery and judgment in the names of James F. Randolph and Carman F. Randolph against said Raphael Keiler, for the sum of $502 51 debt, and $4 costs of suit. This judgment was signed by Lewis Howell, Judge of Common Pleas. The judge then certifies that at the time of confessing said judgment, the plaintiffs therein produced before him an affidavit of the true consideration of the obligation for which said judgment was confessed, &c., and of the other requirements of the statute. Then follows the clerk’s certificate, in the following words :
“ New Jersey, Sussex county, ss. I, Thomas J. Ludlum, clerk of the Inferior Court of Common Pleas, in and for said county, do hereby certify that the above copy of the judgment of James F. Randolph and Carman F. Randolph vs. Raphael Keiler, is a true copy of the same, as the same remains a record in my office. Judgment entered and recorded in book X, of judgments, p. 619, &c. In witness whereof, I have hereunto set my hand and seal of office at Newton, this 13th day of April, A. D. 1858. Thomas J. Ludlum, clerk.” (Seal.)
Then comes the judge’s certificate: “I, Moses Dunning, Presiding Judge of the within named court, do certify that the within attestation is in due form of law, and made by the proper officer to make the same. Witness my hand and seal, this 14th day of April, A. D. 1853. Moses Dunning, Judge.” (Seal.),
The middle letter, “ F,” in the name of Carman F. Randolph, is not inserted in his name in the petition of the plaintiffs, but is in the record of the judgment. This is not an important or material variance.
Here is a properly authenticated copy of a judgment of a sister state, upon a peculiar instrument in writing or bond, authorizing any attorney of any court of record in the United States, to enter and confess judgment against the obligor for the sum of money due thereby. This is allowed by the statute of New Jersey, approved April 15th, 1846. This statute makes all judgments entered by its provisions, “as good and effectual in law to all intents and purposes whatsover, as judgments entered by confession in the manner heretofore practiced j and no such judgment shall be reversed for error or misprision of the clerk in entering the same, or defect of form in the entry thereof; and execution shall issue thereon as in cases of judgments entered by confession in the manner heretofore practiced.” This proceeding in New Jersey can only be in cases where a bond or other obligation is given for the payment of money only, together with a warrant under hand and seal, directed to any attorney at law or other person, to appear in any court of record to an action brought or to be brought on such bond or obligation against the person or persons executing the same, and to confess judgment against him, her or them,
The record, an exemplification of which is made an exhibit in this case, and which was offered in evidence, shows that the requisites of the statute of New Jersey have, in general, been complied with.
There can be no doubt of the effect of this judgment in the state of New Jersey. The proceeding is one regulated by their statute alone ; it is one founded on what is called a judgment bond. The obligor in the bond empowers any attorney of any court of record to enter and confess judgment against him for the debt and costs of suit. These -costs are by law fixed at four dollars, and if execution issues, then one dollar more ‘is allowed for costs.
The law requires “ that a copy of the bond and warrant of attorney to confess judgment, with the entry of the judgment thereon, signed by the justice or judge, shall be delivered to the clerk of the court in which such judgment is to be entered, and the clerk shall immediately file the same in his office, mark thereon the time of filing the same, and enter the judgment on the minutes of the court, and shall also enter all the proceedings on which such judgment shall be founded as aforesaid, and the judgment itself at large in the judgment book of the court, and index the same as in other cases of judgment.” The exemplification of the record in this case, shows all the necessary acts have been done. Here is the affidavit, the copy of the bond, and of the power to confess judgment. Here is the confession of the debt, and of the judgment — all properly certified and authenticated, to be used as evidence. Now, no matter how general the terms of the power of attorney be to confess judgment, it can only be confessed on such bonds and under such powers as are embraced by the statute authorizing the proceeding ; that is, in the state of New Jersey only. But when thus confessed in that state, the judgment there is declared to be as good and effectual, to all intents and purposes,
Now giving to this judgment the effect of any other regularly confessed judgment of the courts of New Jersey, we see at once that the plaintiffs are entitled to recover. The power to confess judgment for the debt in the bond or for the sum of money specified in the bond, as a necessary incident embraces the power to confess also for the interest due on the bond.
Upon the whole case, then, I am satisfied that the judgment of the court below is correct, and should be affirmed; and, Judge Leonard concurring, the same is affirmed.
Dissenting Opinion
dissenting. I do not concur in the foregoing opinion. The instrument sued on is not a record nor judicial proceeding within the meaning of the constitution of the United States. To give binding -effect to a judgment, it is essential that the court should have jurisdiction of the person and of the subject matter. If any other judgment is binding under the constitution, it must be rendered in pursuance of the law of the state in which it is rendered operating on her resident citizens. It does not appear from the record which is the foundation of this suit, or from any thing outside of it, that either the plaintiffs or defendant were ever within the state of New Jersey, where this judgment was entered. The bond, with the power of attorney, by virtue of which the judgment was rendered, is dated in Pennsylvania. It is a general power to any attorney in any court of record in the United States to confess a judgment, not in New Jersey, but in any court of record in the United States. If judgments thus obtained shall be regarded as records and judicial proceedings within the meaning of the constitution of the United States, that instrument will become odious, as furnishing a means by which the greatest injustice and oppression may be practiced. It is well settled that if a sister state grant jurisdiction to her courts over persons or property not within her territory, such legislation will be treated elsewhere as a mere attempt at usurpation,
Tbe bond and power of attorney under which this judgment was confessed, were executed in Pennsylvania. It does not appear that any of tbe parties to tbe suit were residents of New Jersey, or bad ever even been in that state. Tbe power of attorney authorizes any attorney of any court of record in tbe United States (not in New Jersey merely) to enter and confess a judgment. We do not see bow any court, under such a power of attorney, would permit a judgment to be confessed and entered on its records. If the power bad been confined to tbe limits of tbe state of New Jersey, and it bad appeared from tbe proceedings that tbe defendant was a resident citizen of that state, tbe judgment, under her law, might have been upheld. As it stands, there is nothing showing that it was in tbe contemplation of the parties that tbe judgment should be confessed in New Jersey, and it is not seen bow her officers took cognizance of it. To bold that under a power of attorney to any attorney of any court of record in tbe United States, an attorney in
The judgment, in my opinion, is erroneous, for the further reason that it was not confessed by an attorney of a court of record. The creditor had no right to substitute, in place of an officer responsible to the court for his conduct, and specially designated by the parties, a mere private agent of the plaintiffs. The person confessing the judgment styles himself agent for the plaintiffs, and it does not appear that he is an attorney in any court. The power not having been pursued, the act is not valid.