Harn v. Cole

WilliaMS, C. J. (after stating the facts as above). Plaintiff in error contends as one of his grounds of demurrer that the Ohio court did not have jurisdiction of said cause, and consequently, such judgment being void, the probate court of Oklahoma county was without authority to render judgment thereon. In his answer he set up the same defense, alleging that no personal service was ever had upon him; he being at that time a resident of the territory of Oklahoma, and not a resident of nor within the state of Ohio. The statutes and laws of Ohio being neither pleaded nor proved in the court below, such laws are presumed to be the same as those of Oklahoma Territory. Mansur-Tebbetts Implement Co. v. Willet, 10 Okla. 383, 61 Pac. 1066; Betz v. Wilson, 17 Okla. 383, 87 Pac. 844. Section 4592, p. 1061, 2 Wilson’s Rev. & Ann. St. 1903, provides: “Judgments may be entered upon confession by an attorney, authorized for that purpose by warrant of attorney, acknowledged or proved as conveyance of land, without any previous process or proceeding; and judgment so entered shall be a lien from the date of entry.” Section 4594 of the same volume provides: “flBefore any judgment shall be • entered by confession, an affidavit of the defendant must be filed, stating 'concisely the facts on which the indebtedness arose, and that the amount of such indebtedness is justly due and owing by the defendant to the plaintiff.” *557 From the transcript of the Ohio judgment, which appears in the record, it affirmatively appears that there was never any personal service or any authorized appearance on the part of the defendant other than the clause in the note upon which the action is based, which provides: “And we hereby authorize any attorney at law to appear in any court of record in the United States, after the above obligation becomes due, and waive the issuing and service of process and confess a judgment against us in favor of the holder hereof, for the amount then appearing due, together with costs of suit, and thereupon to release all errors and waive all right of appeal.” The note containing this alleged warrant of attorney was neither acknowledged.nor attested or witnessed, and does not comply with the provisions of the Oklahoma statutes relative to the acknowledgment or proving of conveyance of land. Undoubtedly the rule is that, where one seeks to have a judgment rendered against a person under a warrant of attorney, such warrant of attorney must be executed strictly in accordance with the provisions of the statute. It affirmatively appears herein — if it be conceded that the paragraph in the note is a warrant of attorney, though we are not prepared to so concede — that said note was neither acknowledged nor proved, as a deed of conveyance. It is therefore not in compliance with section 4592, Wilson’s Rev. & Ann. St. 1903, supra. Further, section 4594, Wilson’s Rev & Ann. St. 1903, supra, provides that, before such confession can be entered, an affidavit of the defendant must be filed, stating concisely the facts on which the indebtedness arose, and that the amount of such indebtedness is justly du.e, etc. In the transcript of the rec-. orcl of the Ohio judgment it appears that one C A. Sheller, as attorney for the plaintiff, deposes that said action “is brought on an instrument of writing for the unconditional payment of money only, that said instrument of writing is in his possession, and that he verily believes the foregoing statements are true in fact.” This affidavit does not comply with the requirements of section 4594, supra. Further, said section provides that the affidavit shall be ■ made by the defendant, not by the plaintiff or plaintiff’s attorney. *558 It affirmatively appears that the judgment which was rendered by confession as aforesaid, and upon which this action is based, was not in compliance with the laws in force in Oklahoma ’Territory, and such laws on the record, are to be presumed to have been the same as those in force at that time in the state of Ohio. It is unnecessary to determine whether or not, had such judgment been valid under the laws of Ohio, the same could have been enforced in this state against the defendant, who was a citizen of Oklahoma Territory at the time the judgment was obtained. Grover & Baker Sewing Machine Co. v. Radcliffe, 137 U. S. 293, 11 Sup. Ct. 92, 34 L. Ed. 670; Haddock v. Haddock, 201 U. S. 526, 26 Sup. Ct. 525, 50 L. Ed. 867; Grover & Baker Sewing Machine Co. v. Radcliffe, 66 Md. 511, 8 Atl. 256; Thomas v. Pendleton, 1 S. D. 153, 46 N. W. 180, 36 Am. St. Rep. 726. The judgment of the lower court is reversed and remanded for new trial. All the Justices concuy.