Troxel v. Clarke

9 Iowa 201 | Iowa | 1859

Woodward, J.

The appellant puts the question, — Is such a judgment legal and valid, and, can it be inquired into by this court ? That an appeal lies from a judgment by confession, has been determined by this c'ourt.

The defendant then contends,.that the judgment is erroneous in respect to the amount, as being in contravention of the act of the 20th of January, 1853. Stat. 1853, ch. 37, 67. No exception is taken to the manner or form of the proceeding. This is in conformity with the Code, (chap. 107,) a statement being filed, signed by the defendant, and verified by his oath, showing the facts from which the indebtedness arose, and that the sum confessed was due. We do not, however, pass upon the sufficiency or correctness of the record in another respect. This was a judgment by confession, in vacation, and it purports to be rendered by the clerk, and not by the court; and it is not shown that the record was afterward signed by the judge. No question is made upon these matters, and therefore we pass them.

The object of the parties is to have an adjudication of the main question on the note, or on the confession of judgment for the amount stated. And we are of the opinion that, having confessed that so much is due, the defendant cannot now go behind that. If the two and a half per cent is penalty, and subject to liquidation by proof of the damages, then the confession takes the place of the proof. The law will prevent the recovery of usurious interest on a contrac but when it becomes a judgment, the ease is changed. Gower & Holt v. Carter & Shattuck, 3 Iowa, 245.

Judgment affirmed.