Twogood v. Pence

22 Iowa 543 | Iowa | 1867

Wright J.

1. Judgment by confession: conclusiveness of. This judgment was entered up in accordance with the provisions of chapter 128 of the Revision, By this it is provided that a statement in writing must be made and signed by the defendant and verified by his oath to the following effect: “ If for money due or to become due, it must state concisely the facts out of which the indebtedness arose, and that the sum confessed therefor is justl/y due, or to become due.” And after this statement has been filed, and the judgment duly entered, our opinion is, that the claim is merged in said judgment and that the borrower cannot take advantage of the usury. Of course we speak of cases where the judgment was fairly obtained, that is to say, where there was no fraud, surprise or other like ground, upon which to predicate the right to equitable relief.

Such judgments are rendered, it will be seen, not upon a warrant of attorney, but on the written confession or admission of the debtor, duly verified by his oath, and tbe judgment following is as conclusive against the defense of usury as any other. The case of Lyon v. Welsh (20 Iowa, 578),' was where the defense was interposed before judgment, and is, therefore, quite unlike the one before us.

The thought that plaintiffs have resorted to a court of equity to make their claim available, and must therefore be subjected to all equities in defendant’s favor, finds no support in the facts. The rule to which appellant refers does not apply. Plaintiffs do not ask equitable aid to correct or make more complete their judgment. Nor do they ask even to make liable to their judgment, property held ’ in the name of another. Having a judgment regular and valid in all its parts, they seek to prevent the destruction of property, which they allege is essential to their security. No more does the rule suggested apply, than if, by scire facias, they were requiring defendant to show cause why execution should not issue. Of course, payment of the judgment or any defense arising subsequent to its rendition, could be interposed, but not such .as existed when it was rendered, in the absence of fraud or the like, as before explained.

Affirmed.