Cross v. Moffat

Per Curiam. Under the present practice we cannot review, by writ of error, proceedings that have taken place subsequent to final judgment. Polk v. Butterfield, 9 Colo. 325. This disposes of the alleged errors predicated upon the court’s action in refusing to vacate the judgment. The fact that no summons was issued is unimportant. If Clise acted within the authority conferred by the warrant of attorney, and if the judgment can be sustained [211] in other respects, his appearance for plaintiffs in error constituted a waiver of the issuance and service of process. This suggestion answers the argument relating to jurisdiction over the persons of plaintiffs in error. In our judgment the challenge of the court’s jurisdiction over the subject-matter rests upon no better ground. But one question is presented requiring extended consideration. It is claimed that the final judgment rendered should be set aside, because the instrument did not authorize the confession as made in Clise’s cognovit at the time the proceeding took place. There is nothing in our statutes that prohibits the procedure adopted in this case. It is fully recognized and generally pursued at common law; and the sections of the code providing a mode for obtaining judgments without action do not inhibit pursuing this common-law method when authorized by contract of the parties themselves. There is, in fact, an action pending, and the cognovit may appropriately be regarded as an answer to the complaint, the filing of which constitutes a waiver of the issue and service of process. But it is insisted that, after the lapse of so long a period from the date of the instrument as here appears, a legal presumption should be indulged against the authority of one presuming to act under the warrant as attorney for an absent defendant. A certain rule in England, adopted by the courts of king’s bench and common pleas, is confidently relied upon by plaintiffs in error to support their position in the foregoing regard. This rule prohibits judgment by confession on a warrant of attorney where more than a year and a day has expired from the date of such warrant, except upon affidavit stating that the instrument is genuine, that the whole or some portion of the debt is yet due, and that the debtor is still alive. The warrant of attorney in the case at bar was over six years old when judgment was entered, and the affidavit filed does not state that the parties were alive, or that the debt [212] remained unpaid. We shall decline to be governed by the English practice mentioned. It rests upon a special rule, originating in the court of king’s bench, and not recognized by statute. Some of the controlling reasons leading to the adoption of this rule in England can hardly be considered applicable in this state at the present time. Why should we select the arbitrary period of a year and a day, and say that after that time the instrument shall not have the same force and effect as before? There is nothing in the arrangement of our terms of court calling for such a rule; we have no statute of limitations fixing this period in connection with actions or recoveries; and there is no legal presumption that, after a year and a day, the debtor is dead or the obligation discharged. It will be observed that the time begins to run under the rule from the date of the warrant of attorney, not from the maturity of the debt. Yet here such warrants of attorney are frequently given in connection with promissory notes to run for two or three or even a greater number of years. But it is asserted that our six-year statute of limitations had run against the note here sued on, and therefore the judgment by confession should be set aside, so that plaintiffs in error may plead this defense. In the first place, the complaint avers, and a copy of the note set out therein shows, that payments were made within the time mentioned. Hence it appears by the pleadings that the bar of the statute did. not apply. Secondly, this statute is a personal privilege, to be relied upon or not as the debtor may choose. There is no legal presumption that he will elect to plead it. And thirdly, for this court to hold that after six years a warrant of attorney, embodied in the solemn contract of the parties, shall be void, would, to say the least, savor strongly of judicial legislation. The part payment upon the note operated as a redelivery thereof. Buckingham v. Orr, 6 Colo. 587. The warrant of attorney was security; and, like any other security, [213] remained valid. When the note was negotiated to defendant in error the transfer carried with it this security, just as much as it would have .done had there been a valid mortgage or deed of trust. In response to the suggestion that it is dangerous to permit the entry of judgment, after the lapse of a considerable period, upon warrants of attorney like the one before us, we have this to say: The contract itself expressly waives all of the ordinary errors in procedure; and if the debt has been paid, if the statute of limitation has run, and defendant could be permitted to rely upon it, if the instrument is void because procured by fraud, or if any other available defense exists, the debtor may have relief through a suit in equity. Lake v. Cook, 15 Ill. 354. There is, therefore, a remedy by which the hardships not contemplated by the contract, that might otherwise sometimes result, may be avoided. There seems to have been a mistake in the computation of interest. The judgment is too large by $128.65. It will therefore be reversed and the cause remanded, with direction that the court below, if plaintiff elect to remit the amount named, enter judgment for the sum remaining due. Reversed and remanded.