Van Norman v. Gordon

172 Mass. 576 | Mass. | 1899

Morton, J.

The question is whether the judgment which the plaintiff seeks to enforce is entitled to full faith and credit. The answer depends on whether the court which rendered it had jurisdiction to render such a judgment. Board of Public Works v. Columbia College, 17 Wall. 521. If it had, then the fact that it is a judgment by confession under a warrant of attorney is immaterial. Such judgments, when rendered by courts having jurisdiction of the cause and the parties, have all the qualities, incidents, and attributes' of other judgments. Teel v. Yost, 128 N. Y. 387. See Henry v. Estes, 127 Mass. 474.

It does not appear from the facts that are agreed whether the laws of Wisconsin in force at the time authorized the entry of judgments pursuant to powers of attorney to confess judgment, or if so, under what circumstances, or whether the court which rendered the judgment was a court of record or of general jurisdiction, or, if that is material, whether the defendant was a resident of Wisconsin when the judgment was rendered and the proceedings were instituted. No objection has been made, however, in respect to these matters, and the copy of the record, which has been submitted to us, shows that the court was. a county court, with a clerk and seal, and was therefore a court of record, and may be presumed to have been a court of general jurisdiction. Knapp v. Abell, 10 Allen, 485, 489. Pringle v. Woolworth, 90 N. Y. 502.

And in view of the further considerations that every presumption is to be made in favor of the regularity of the proceedings, that it is not now contended that the court had not jurisdiction to enter judgment pursuant to a warrant of attorney to confess judgment, and that such proceedings are well known at common law and in many States, we think that it may also be presumed that the court had jurisdiction to enter judgment upon a warrant of attorney to confess judgment, and that the proceedings were regular, and according to the laws of Wisconsin. McMahon v. Eagle Life Association, 169 Mass. 539, and cases cited. Wright v. Andrews, 130 Mass. 149. Stockwell v. McCracken, 109 Mass. 84. Bissell v. Wheelock, 11 Cush. 277. Galpin v. Page, 18 Wall. 350.

The attorneys who appeared and acted for the defendant never were authorized to appear for him and confess judgment, except as they were authorized to do so by the warrant of attorney. It is agreed that they were attorneys of a court of record, — in Wisconsin we assume. We assume also that they were requested to appear by the attorney named in the warrant, or his firm, and that their appearance was really in the plaintiff’s interest. That naturally would be so, and must have been expected when the power of attorney was given. There is no charge of fraud, or that judgment was entered for more than was due, or before the note was due, which would have been contrary to the power of attorney. The record shows that judgment was not entered till seventeen or eighteen months after the note was due. The note and warrant of attorney were both signed in Wisconsin, where the defendant, and, as we infer, the plaintiff, resided at the time, and the note was payable in Wisconsin, where the plaintiff has his place of business, if not his home.

What was done in confessing judgment came within the terms of the warrant of attorney. Unless, therefore, the warrant of attorney purported to give an authority which it did not, or was for some reason invalid, we see no ground on which the judgment can be called in question. Assuming that we could refuse full faith ' to the judgment if we thought that there was an error of law in it, (see contra, Laing v. Rigney, 160 U. S. 531, Carpenter v. Strange, 141 U. S. 87, and Richards v. Barlow, 140 Mass. 218,) we find nothing which would justify such a conclusion. The warrant well might be held valid in Wisconsin, though adjudged invalid in another State. According to Mr. Dicey and Mr. Freeman, however, a warrant of attorney may be so drawn as to authorize a confession of judgment in a foreign State. Dicey, Confl. of Laws, 377. Freem. Judgments, § 545.

Lord Blackburn went so far in one case as to suggest that “ If at the time when the obligation was contracted the defendants were within the foreign country, but left it before the suit was instituted, we should be inclined to think the laws of that country bound them.” Schibsby v. Westenholz, L. R. 6 Q. B. 155, 161. He was overruled, however, in Sirdar Gurdyal Singh v. Rajah of Faridkote, [1894] A. C. 670, 685, 686.

In Richards v. Barlow, ubi supra, no objection seems to have been taken because the warrant authorized an appearance “ by any attorney of any court of record.” See also First National Bank v. Garland, 109 Mich. 515; Teel v. Yost, 128 N. Y. 387. And in Pirie v. Stern, 97 Wis. 150, it was held that a power authorizing a confession of judgment “ in any court of record” could be executed in any State in the Union, disapproving, as does also the court in Michigan in First National Bank v. Garland, ubi supra, the cases in Ohio and Tennessee on which the defendant relies. In Blanck v. Medley, 63 Ill. App. 211, it was held that a warrant of attorney authorizing “ any attorney of any court of record” to confess judgment could be executed by an attorney in partnership with the attorney who signed the declaration for the holder of the note. See also Mikeska v. Blum, 63 Tex. 44.

We think, therefore, that the judgment must be regarded as rendered by consent of the defendant, that it was such a judgment as the court which rendered it had jurisdiction to render, and that it is entitled to full faith and credit.

Judgment for the plaintiff.