71 Wis. 288 | Wis. | 1888
This is an appeal from an order setting aside judgments between these parties. It is stipulated that the appeals from the order in each case be consolidated, and that they be treated as one appeal. The judgments were, entered upon warrants of attorney included in the same instruments with the promissory notes given by the defendant. These notes were dated Eebruary 3,1881, and became due, one in four months and the other, in six months from date. Judgments were entered on the warrants of attorney on each note, February 11 th, eight days after the notes were given, and before anything was due upon them. It is now claimed on behalf of the defendant that the warrants of attorney did not authorize the entry of judgment when nothing was due upon the notes. This contention we think is sound, and must prevail.
The warrants of attorney, in effect, “ authorize any attorney of any court of record to appear for the defendant in term time or vacation at any time [thereafter], and confess judgment without process in favor of the holder of the note, for such amount as may appear to be unpaid thereon, hereby expressly waiving all exemption under the laws of Illinois, and also waiving all errors in the proceedings.” How the obvious meaning of this language restricts the authority to confess judgment to the amount actually due upon the notes. It is said on the part of the plaintiffs that it authorizes a confession of judgment, not only for the amount due, but for the amount to become due, at any time after the warrant of attorney was executed. But this is not a fair construction of the instrument. The language, “for such amount as may appear to be unpaid thereon,” clearly refers to the amount which is actually due and payable. It is doubtless true that the word “ unpaid” sometimes means a debt or obligation not discharged, without regard to the time it matures. But that is not the sense in which the word is used in the warrant of attorney. It ap
The remarks of Mr. Justice Orton, in Sloane v. Anderson, 57 Wis. 123, are so pertinent to the point we are considering that we cannot do better than quote them, as they fully settle the construction which should be given to the warrant of attorney. The warrant of attorney in that case contained the precise language which is used in the one before us. Mr. Justice Orton says: “ The power of attorney does not authorize the confession of judgment before the note is due, or for more than is due upon it. The language ‘ for such amount as may appear to be unpaid thereon ’ does not give such authority by the necessary meaning of the word ‘unpaid,’ or by any meaning that can be forced by its context.” A power to confess judgment for a debt not due should be “clearly granted and expressed, and not left to mere inference or implication. The word ‘ unpaid ’ is more commonly and properly applied to a debt due than to a debt undue, and may at least as well mean a debt due as undue; therefore no power to confess a judgment for a debt undue is even implied by it. In Dilley v. Van Wie, 6 Wis. 209, the warrant of attorney authorized the confession of judgment for the amount appearing to be due, and the attorney was held to the authority only to confess judgment for the amount actually due. See, also, McCabe v. Sumner, 40 Wis. 386.”
The law is well settled that, in entering up judgment on a warrant of attorney, the authority given by it must be strictly pursued. 1 Tidd, Pr. (9th ed.), 552. It seems to us
In this case, one of the notes was not due when the order vacating the judgment upon it was made. It is said the defendant should show that he is subjected to some injustice, before the court should interfere and set the judgment aside. We think he does show that when it appears that a judgment has been entered against him without any authority in law. It is fair to presume that substantial rights ¡have been affected by the entry of judgment in that manner. This does not present a case of mere technical error ■or irregularity, but a judgment unauthorized, which would .seriously affect the credit of the defendant.
By the Court.— The order of the circuit court is affirmed.