Docket No. 151 | Mich. | Mar 31, 1911
{after stating the facts). It is urged by the appellant that, inasmuch as the exemplification of the Pennsylvania record shows that the judgment was obtained without service of process upon Edward A Raymor and without an appearance for him by any attorney, in accordance with the provisions of the warrant, the judgment itself is invalid, and not binding upon the deceased or his estate. That the authority to confess a
“ It is well settled that the authority to confess a judgment under a warrant of attorney must be strictly pursued, and the instrument delegating such a power will not be interpreted as granting authority to do any acts beyond those authorized in terms, or those which are necessary to carry into effect the power expressly given. A warrant of attorney to confess judgment cannot be enlarged by writing into it the laws of the nature of which the donor is not charged with knowledge.”
See, also, Rasmussen v. Hagler, 15 N.D. 542" court="N.D." date_filed="1906-06-20" href="https://app.midpage.ai/document/rasmussen-v-hagler-6735830?utm_source=webapp" opinion_id="6735830">15 N. D. 542 (108 N. W. 541); First Nat. Bank v. White, 220 Mo. 717" court="Mo." date_filed="1909-05-31" href="https://app.midpage.ai/document/first-national-bank-v-white-8016878?utm_source=webapp" opinion_id="8016878">220 Mo. 717 (120 S. W. 36, 132 Am. St. Rep. 612); Grubbs v. Leon & H. Blum, 62 Tex. 426" court="Tex." date_filed="1884-11-18" href="https://app.midpage.ai/document/grubbs-v-leon--h-blum-4894538?utm_source=webapp" opinion_id="4894538">62 Tex. 426; Manufacturers’ & Mechanics’ Bank v. St. John, 5 Hill (N. Y.), 497; Cushman v. Welsh, 19 Ohio St. 536; Cowie v. Allaway, 8 Durnf. & East, 257.
While the Pennsylvania statute quoted above makes it the duty of the prothonotary to 9nter judgment against the person who executed the warrant, upon application to him of any person who is the original holder (or assignee of such holder) thereof, no such authority is contained in the warrant itself. The instrument says:
“And further, I do hereby authorize and empower any attorney of any court of record of any State of the United States, to appear for and enter judgment against me.”
It is not contended, of course, that either the original or amended record shows that Weaver appeared as attorney for the maker of the note and warrant. The entry of the judgment by the prothonotary was without authority so far as the instrument itself is concerned, and, though authorized by the Pennsylvania law, it was not binding upon a citizen of another State.
An instructive case upon this point will be found in Grover & Baker Sewing Machine Co. v. Radcliffe, 66
The case having been removed to the United States Supreme Court, the judgment of the Maryland court was affirmed, and it was said:
“ John Benge was a citizen of Maryland when he executed this obligation. The subject-matter of the suit against him in Pennsylvania was merely the determination of his personal liability, and it was necessary to the validity of the judgment, at least elsewhere, that it should appear from the record that he had been brought within the jurisdiction of the Pennsylvania court by service of process, or his voluntary appearance, or that he had in some manner authorized the proceeding. By the bond in question, he authorized 'any attorney of any court of record in the State of New York, or any other State, to confess judgment against him (us) for the said sum, with release of errors, etc.' But the record did not show, nor is it contended, that he was served with process, or voluntarily appeared, or that judgment was confessed by an attorney of any court of record of Pennsylvania. Upon its face, then, the judgment was invalid, and to be treated as such when offered in evidence in the Maryland court.
“It is said, however, that the judgment was entered against Benge by a prothonotary, and that the prothonotary had power to do this under the statute of Pennsylvania of February 24, 1806. Laws of Penn. 1805-1806, p. 347. This statute was proved as a fact upon the trial in Maryland, and may be assumed to have authorized the action taken, though under Connay v. Halstead, 73 Pa. St. 354, that may, perhaps, be doubtful. And it is argued that the statute, being in force at the time this instrument was executed, should be read into it, and considered as*265 forming a part of it; and therefore that John Benge had consented that judgment might he thus entered up against him without service of process, or appearance in person, or by attorney.
“But we do not think that a citizen of another State than Pennsylvania can be thus presumptively held to knowledge and acceptance of particular statutes of the latter State. What Benge authorized was a confession of judgment by any attorney of any court of record in the State of New York, or any other State, and he had a right to .insist upon the letter of the authority conferred. By its terms he did not consent to be bound by the local laws of every State in the Union relating to the rendition of judgment against their own citizens without service or appearance, but, on the contrary, made such appearance a condition of judgment. And, even if judgment could have been entered against him, not being served and not appearing, in each of the States of the Union, in accordance with the laws therein existing upon the subject, he could not be held liable upon such judgment in any other State than that in which it was so rendered, contrary to the laws and policy of such State.
“ The courts of Maryland were not bound to hold this judgment as obligatory, either on the ground of comity or of duty, thereby permitting the law of another State to override their own.”
See, also, Teel v. Yost, 128 N.Y. 387" court="NY" date_filed="1891-10-06" href="https://app.midpage.ai/document/teel-v--yost-3580445?utm_source=webapp" opinion_id="3580445">128 N. Y. 387 (28 N. E. 353, 13 L. R. A. 796); Cuykendall v. Doe, 129 Iowa, 453" court="Iowa" date_filed="1906-01-18" href="https://app.midpage.ai/document/cuykendall-v-doe-7111767?utm_source=webapp" opinion_id="7111767">129 Iowa, 453 (105 N. W. 698, 3 L. R. A. [N. S.] 449, 113 Am. St. Rep. 472); Sim v. Frank, 25 Ill. 125" court="Ill." date_filed="1860-11-15" href="https://app.midpage.ai/document/sim-v-frank-6950095?utm_source=webapp" opinion_id="6950095">25 Ill. 125.
In Sim v. Frank, supra, the court, in discussing the Pennsylvania statute, said:
“ Such a statute can only be binding upon citizens of that State, while Sim was a citizen of Illinois at the time the judgment was rendered.”
The judgment is reversed, and as there is no disputed question of fact involved the case will be remanded to the court below, where judgment will be entered in favor of the defendant.