Sharp v. Danville, Mocksville & Southwestern Railroad

MeruiMON, C. J.: The record presents no question as to the right of the appellant to have possession and control, as receiver, of the property of the defendant corporation; nor as to the rights of the complainants-in the cause in equity mentioned, pending in the Circuit Court of the United States, as against such defendant or its property; nor as to the authority of the last mentioned Court to take jurisdiction and dispose of such property for proper purposes in the cause mentioned pending therein; nor as to how the judgment in this action, which the appellant seeks to have set aside or declared void, if it be valid, may affect adversely the complainants represented by the appellant, or any other persons. The motion of the appellant, if it be granted that he has a right to make it, raises no such question for our decision now. The judgments in question are final in their nature, and hence the motion is limited in its purpose and scope to the inquiry whether or not they are in any material respect *318 irregular, and must, for irregularity, be set aside or declared void. It is well settled by many decisions that final judgments cannot be attacked for fraud by motion in the cause, and that this can only be done by an independent action brought for the purpose, the object being to avoid confusion, and to require a cause of action so serious to be litigated by regular formal pleadings. Indeed, the right to have a final judgment set aside because of fraud, is, in a substantial sense, an independent cause of action, that should itself be the subject of a separate action. It seems that the motions to set aside the judgments mentioned, were treated as consolidated and disposed of together, and they must be so treated here. This is not an equitable motion of the class wherein it is the province of this Court to review the findings of fact in respect thereto, and the matters and things embraced by it, by the Court below, nor can this Court go beyond its findings and hear evidence and find other facts. If further findings of fact should be deemed necessary, this Court might remand the case to the end the same might be made. We are unable to discover in either of the judgments any irregularity such as affects its substance and validity. What particular powers were conferred upon the defendant corporation and its officers by its charter, do not appear; but it sufficiently appears that it was a business corporation, and, as such, under the general statutes of this State in respect to corporations, as well as general principles of law applicable, it might acquire and dispose of property, make and owe debts, sue and be sued. It was the duty of its directors to pay its debts and manage its general business matters — to bring necessary actions in its name — to vindicate its rights, and to defend actions brought against it. There is no reason, so far as appears, why the defendant might not confess a judgment in favor of its honest creditor, and, in possible *319 cases, it might be just, and promote its interests and convenience to do so. Its directors, in meeting assembled, appointed and charged its special agent .to confess the judgments in question in its name, in favor of the plaintiff therein. Nothing appears in the record to show that this might not be done in the orderly course of business, just as if it had been a natural person. The defendant could only appear and act by its ageut in the way it did do. The statute (The Code, §570) prescribes that “a judgment by confession may be entered, without action, either in or out of term, either for money due or to become due, or to secure any person against contingent liability on behalf of the defendant, or both, in the manner prescribed by this chapter.” A distinguishing feature of such judgment is that it must be confessed in the way prescribed, and entered of record either in term-time by the Judge, or out of term by the Clerk acting for the Court, and without action. It may be founded on a debt due, or one to come due, or to secure the party to whom it is given against contingent liability, or it may embrace both such debts and liability. But it is not sufficient to simply confess and enter judgment. It is essential that the confession and entry shall have the additional requisites further prescribed by the statute (The Code, §§ 571-572), which are, that “ a statement in writing must be made, signed by the defendant and verified by his oath to the following effect: 1. It must state the amount for which judgment may be entered, and authorize the entry of the judgment therefor. 2. If it be for money due, or to become due, it ynust state concisely the facts out of which it arose, and must show that the sum confessed therefor is justly due, or to become due. 3. If it be for the purpose of securing the plaintiff against a contingent liability, it must state concisely the facts constituting the liability, and must show that the sum confessed therefor does not *320 exceed the same. The statement may be filed with the Clerk of the Superior Court of the county in which the defendant resides, or, if he does not reside in the State, of some county in which he has property. The Clerk shall endorse upon it and enter on his judgment docket a judgment of the Court for the amount confessed, with three dollars costs, together with disbursements. The statement and affidavit, with the judgment endorsed, shall thenceforth become the judgment roll,” &c. It is essential that these requirements shall be observed — certainly, substantially, in every respect. The judgment is given out of the ordinary course of procedure, but, nevertheless, it at once, when docketed, becomes a lien upon the judgment debtor’s real property. The purpose of such particular requisites is to give assurance that the consideration underlying the judgment is fair and honest; that the judgment was so confessed bona fide; to point to the grounds of indebtedness of the debtor, or the liability provided against, so that another creditor may scrutinize the honesty and good faith of the judgment and the debts for which it was given. The judgments in question possess, substantially, all the requisites thus prescribed. The statement, in writing, of the first one mentioned is signed by the defendant, by its agent, and sworn to by him. It states, with particularity, the precise amount of the liability, and the grounds thereof, provided against; and' the statement, as made fuller by a sworn exhibit of details, points to the grounds of the liabilty with such certainty and such detail as to enable a creditor who might scrutinize it to show, with reasonable effort, that it was not true, if, indeed, it were not so% As to the first draft mentioned, the consideration thereof is particularly specified, and it appears that the defendant got the benefit of it. As to the second draft, it appears that the money realized from it was for the use and benefit of the defendant. In addition, *321 it was drawn by and on itself, and endorsed by the plaintiff. As to the third ground of liability^, it could not be mistaken. The facts stated point to it with such certainty as to make it easy to verify it. The same may be said as to the second judgment. The second statement, aided by the sworn exhibit connected therewith, shows a detailed account of the dealings between the plaintiff and defendant — the balance due to him and the items of charge making up the whole. These supply the data to any creditor who might wish to contest the defendant’s indebtedness to the plaintiff on the several accounts specified. The statements were filed with the Clerk of the Superior Court of the proper county. He entered the judgment confessed on each, and also on his judgment docket. Such statement, with the entry of judgment thereon, made up the judgment roll, to be seen, examined and scrutinized by any person interested. The mere facts that the judgments were entered in the night time, and in the law office of counsel, near to the court-house, for convenience, did not render them void or irregular. The Clerk of the Court, the proper officer, near to his office, having the proper judgment docket with him, received the statements and entered the judgments on that docket, and on the statements respectively. The judgments so confessed, the judgment docket and the judgment roll were next and ever thereafter in their proper places in the office and custody of the Clerk, and thus the requirements of the law were, in all material respects, observed. McAden v. Hooker, 74 N. C., 24; Davidson v. Alexander, 84 N. C., 621; Davenport v. Leary, 95 N. C., 203. The statute prescribes the method and order to be observed in confessing judgments without action. That method and order was, in all material respects, observed as to the judg- *322 .merits in question, and we so declare. It may be they were -affected with fraud, but any question in that respect is not mow before us. The Court below properly declined to consider the allegations of fraud and the evidence tending to prove the same and the contrary. Judgment affirmed.