Coleman v. Waters

HaymoND, Judge, delivered the opinion of the Court: It appears, that it was agreed by counsel for plaintiff and defendants, that either party may consider, as part of the evidence, any part of the papers and any decree or order in the chancery canse of E. V. Cox v. W. E. G. Gillison, trustee, and others, to have such weight, as if properly produced. It further appears, that on the 25th day of November, 1876, the defendant, James T-Waters, tendered an amended answer to plaintiff's bill, to the filing of which the plaintiff objected for reasons endorsed in writing on the said answer; and the court refused to permit the said amended answer to be filed. I deem it unnecessary to state here the said rejected amended answer, as the action of the court in rejecting the amended answer is not assigned as error, or claimed before us.to be error; and I see no error in the court in refusing to allow the amended answer to be filed, at the time it was tendered, under the circumstances. It now remains to be determined, whether the circuit court erred in its decree, appealed from, to the prejudice of the appellants, so as to authorize or require this Court to reverse the same. The judgment, in the bill mentioned, is a judgment rendered in another State; and it appeal’s to be a judgment confessed by authority of a warrant of attorney — 303 — executed by the defendant, James T. Waters. The bond on which the judgment was confessed, is a bond in a penalty of $10,000.00snbject to the condition therein expressed. By the law of New Jersey it is provided as follows : “ 1. In all cases where a bond or obligation is given for the payment of money only, together with a warrant under hand and seal directed to any attorney at law, or other person, to appear in any court of record to an action, brought, or to be brought, on such bond or obligation against the person or persons executing the same, and to confess a judgment against him, her or them, for the sum mentioned in such bond and warrant-of attorney with costs of suit, or to the like effect, it shall and may be lawful for the obligee or obligees, his or their heirs, executors, administrators, or assigns, at any time after the day of payment mentioned in said bond or obligation, to apply to any of the justices of the Supreme Court, or to any of the j udges of the circuit court or court of common pleas, in any of the counties of this State; and on the production of such bond or obligation with the warrant of attorney, it shall be the duty of such justice or judge, at the request of the person applying as aforesaid, at the end of a fair copy of such bond or obligation and warrant of attorney, to enter, or cause to be entered, an appearance for the obligor, or obligors, to an action of debt, as of the last precedent term of the court, of which the said justice or judge is a member, and a confession and judgment against bim, her or them, for the sum mentioned in said bond or obligation and warrant of attorney, signed by the said justice or judge in the following form, to-wit: Supreme Court (or circuit court or court of common pleas, as the case may be) of the term of —:-. A. B. v. C. D. In debt on bond by warrant of attorney. The defendant’s appearance to this action is entered, — 304 — and judgment confessed to the plaintiff for the sum mentioned in the above obligation, by virtue of the warrant of attorney thereunto annexed, and pursuant to the directions of an act entitled, ‘An act directing the mode of entering judgments on bonds with warrants of attorney to confess j udgments/ whereupon it is considered, that the said A. B. do recover against the said C. D., the sum of-debt, and four dollars, costs of suit. Judgment signed this-day oi-. E. F. “2. The copy of the bond and warrant of attorney to confess judgment, with the entry of the judgmeiH thereon, as before directed, signed by the justice or judge shall be delivered to the clerk of the court, in which such judgment is to be entered; and the clerk shall immediately file the same in his office, mark thereon the filing of the same, and enter the judgment in the minutes of the court, and shall enter also the proceedings, on which said judgment shall be founded, as aforesaid, and the judgment as aforesaid, and the judgment itself at large in the judgment book of said court, and index the same as in other cases of judgment. “ 3. All judgments, entered as before directed, shall be as good and sufficient in law, to all intents and purposes whatsoever, as judgments entered by confession in the manner heretofore practiced; and no such judgment shall be reversed for error or misprision of the clerk in entering the same, or defect of form in the entry thereof; and execution shall issue thereon, as in cases of judgments entered by confession, in the manner heretofore practiced. “ 4. All judgments on bonds or obligations for the payment of money only, in virtue of a warrant of attorney to confess judgments thereon, shall be entered as in and by the first and second sections of this act is directed, and not otherwise. “ 5. No judgment shall be entered in any court of record in this State, on a warrant of attorney to confess such judgment, or by the defendant appearing in person — 305 — in open court and confessing the same, unless the plaintiff or his attorney shall produce, at the time of confessing such judgment, to the county judge or justice, before whom the judgment shall be confessed, an affidavit of the plaintiff, his attorney or agent, of the true consideration of the bill, bond, deed, note or other instrument of writing or demand, for which the said judgment shall be confessed; which affidavit shall further set forth, that the debt or demand, for which the judgment is confessed, is justly and honestly due and owing to the person, or persons, to whom the judgment is confessed, and that the said judgment is not confessed to answer any fraudulent intent or purpose, or to protect the property of the defendant from his other creditors. “ 6. The affidavit required by this act, may be made befoi’e any Justice of the Supreme Court, judge of any circuit court or court of common picas, commissioner for taking affidavits, or justice of the peace of this State, or if the plaintiff be out of this State, before any court of judicature or notary public of the state, kingdom or nation, in which the said plaintiff resides, or shall happen to be; which affidavit, together with a copy of the bill, bond, deed, note, contract, instrument of writing, account or particulars of the demand, on or for which the judgment is confessed, shall be hied with the other papers in the canso.” This legislation seems to be a part of the revision of the laws of blew Jersey, and was approved April 15, 1846. (R. S. 944.) See Nixon’s Digest of the Laws of the State of New Jersey, pp. 76, 77. An act, supplementary to the foregoing .act, seems to have been enacted by the legislature', of said State, which was approved on the first of March, 1849. This .supplementary act provides in the first section thereof as follows, viz : “1. Hereafter it shall be lawful for the commissioners to take special bail, and to administer oaths and affirmations, appointed, or hereafter to be appointed, by the — 306 — justiooK of tlie Su])rcme Court, and commissioned under the act entitled * An act authorizing the justices of the Supreme Court to appoint commissioners to take special bail and to administer oaths and affirmations/ to sign, and order entered, judgments by confession upon special warrant of attorney, in any court, wherein such judgments may now be entered; and such judgments so signed, and ordered entered, shall have the same force and validity, as the same would have, if signed by a judge of such court, as heretofore.” Same Digest p. 78. It was held by the Supreme Court of the State of New Jersey, that “the warrant to confess judgment on a bond may be made at a different time from the bond, and to a different person. It is not necessary, that it should be directed to any particular attorney;” and also that “it is not necessary, that it should appear upon the record, that the bond and warrant of attorney were produced before the judge at the time of entering the judgment.” Burrough’s v. Condit, 1 Halst. (N. J.) 365. It was also held in the same case, that it is sufficient if the warrant of attorney is directed generally to any citizen of New Jersey. It was held by the same court in the same State, that judgment may be entered by confession on the day of its date upon a bond payable on demand. Nix. Digest 78 ; 2 Halst. (N. J.) 348, case of Eagle v Emley. The warrant of attorney in the case before us seems to have been made by James T. Waters one year after the execution of the bond, to which it relates. It is dated on the day the second instalment of interest, mentioned in the condition of the bond, became due; and it authoi’-izes John C. Ten Eyck, the attorney to whom it is directed, in case of breach of the condition of the bond, to appear for him, J. T. Waters, in any court of competent jurisdiction, and confess judgment for the penalty therein mentioned, as of the last or any subsequent term, with costs of suit and release of errors. The defendant, J. T. Waters, does not deny the exe307 cntion of said warrant of attorney in his answer. He fails to put that question in issue, as he should have done, if he desired to rely upon that fact. Wilson et al. v. The Bank of Blount Pleasant, 6 Leigh 370. It must, as the case stands, be considered, that the power of attorney was executed by the defendant, -James T. Waters, at the day of its date. The affidavit of William S. Coleman, the plaintiff, appears to be in due form, and is dated the 28th day of July, 1872, as appears not only by the printed record in the cause, but also by the manuscript record of the proceedings in the cause, which has been brought to this court, and is on file. The judgment appears to be in due form substantially according to the provisions of the law of New Jersey, which I have quoted above; and I regard the judgment, under the New Jersey legislation, as in fact being a judgment for the $10,000.00, the penalty of the bond, which may be discharged by the payment of the amount stated in the affidavit. The warrant of attorney authorizes the attorney to confess judgment for the penalty of the bond, in case of a breach of the condition. The judgment was therefore confessed in accordance with the warrant of attorney. At the time the warrant of attorney was executed no breach of the condition could have been comtemplated by the defendant, James T. Waters, except the failure to pay the interest stipulated in the condition of the bond, the first instalment of which was past doe, and the second instalment whereof was due on the day of the date of the warrant of attorney. It is not pretended by the defendant, Waters, in his answer, that .either the first or second instalment of the interest was paid, when doe, or at any time prior to the confession of the judgment, which was on the 23d day of July, 1872. But it is argued by the counsel of the defendant, that the court should have refused to enforce said judgment; first, because the defendant, James T. — 308 — Waters, never was notified in the cause, in which the "judgment was confessed, and had no notice of any such proceeding; and second, because the judgment was for a penalty; and a court of equity in this State should refuse to enforce it. Syllabus 1 It seems to me, upon principle and authority, that the first proposition is untenable. In the case of Randolph et al. v. Kisler, 21 Mo. 557, it was held by the Supreme Court of Missouri, that “ Where, in suit on a judgment of a court of the State of New Jersey, it appears from a .transcript of such judgment, that the same was entered and rendered, as confessed, in pursuance of the law of the State of New Jersey, by virtue of and in pursuance of a warrant of attorney, dated Easton, Penn., empowering any attorney of any court of record in the United States, to confess judgment against the defendant and in favor of the plaintiffs, such judgment being valid in the State of New Jersey by virtue of the laws thereof, is entitled to ‘full faith and credit’ within the meaning of section one, of article four, of the Constitution of the United States; and that too, although it does not appear, that either the plaintiffs or the defendant, were at the date of said judgment citizens of the State of New Jersey, or had ever been within the said State.” The contract and subject of it in this case seem to have been in the State of New Jersey; the plaintiff resides in the State of New Jersey, and I think it is fair to infer, that the warrant of attorney was made in New Jersey; but whether it was or not, it seems to me is wholly immaterial according to said Missouri decision. I confess, I am unable to say, if C. resides in New Jersey, and W. malees a contract ’with him there for the payment of money, why W. if he resides in New York, may not make a warrant of attorney, authorizing judgment to be confessed against him in the State of New Jersey, or in any other State. The Missouri case cited seems to decide the question directly. The record of the proceedings in the State of New — 309 — Jersey is certified fully, in accordance with the act of Congress in such cases made and provided, both by the clerk of the circuit court and court of common pleas of the county of Burlington, New Jersey, and the judge of said court. In the case of Mills v. Durgee, 1 Crunch 481, the question was, whether the plea of nil debet was a good plea to an action of debt, brought in the District of Columbia on a judgment, rendered in New York. It appeared, that the defendant was arrested, and gave bail, and so had full notice of the suit. There was no doubt, that in a court of New York, the record of the judgment would have been conclusive upon the parties. The Supreme Court considering that the judgment had the same effect, when an action was brought on it in another State, held the plea to be bad. The same question was presented in Hampton v. McConnel, 3 Wheat. 234, and decided the same way. Numerous decisions of State courts, holding a judgment fairly and regularly obtained in another State, as full and conclusive evidence ol‘‘ the matter adjudicated, have been made by numerous State courts. Evans v. Totem, 9 Serg. & R. 259; Benton v. Burgot, 10 Serg. & R. 240; Kean v. Rice, 12 Serg. & R. 203; Baxley v. Lynch, 4 Harr. (N. J.) 241; Wemnag v. Pawling, 5 Gill & J. (Md.) 507; Clark’s adm’r v. Day, 2 Leigh 172; Kemp v. Mendell, &c., 9 Leigh 12; Rogers v. Coleman, Hard. (Ky.) 413; Lift. (Ky.) 273, 417; Williams v. Burton, 3 Mar. J. J. (Ky.) 604; Fletcher, &c. v. Ferrell, 9 Dana (Ky.) 377; Andrews v. Montgomery, 19 Johns. (N. Y.) 165; see Robinson’s (new) Practice, vol. 1, chs. 45 and 46 and authorities there cited. The proceedings and judgment in New Jersey in the case at bar were, and are, unquestionably valid in the State of New Jersey under the legislation of that State, unless there be some defect therein not yet considered. But it is maintained by appellants, that the judgment is void because the person, to whom the warrant of at — 310 — torney is directed, and the Supreme Court commissioner, before whom the confession of judgment was bad, are one and the same person, and that the attorney could . not confess judgment to himself as commissioner. However this may be in law, there is no evidence appearing by the record, that the commissioner and attorney, to whom the warrant of attorney is directed, are one and the same person; and I do not feel authorized in the absence of proof to presume, that the attorney and commissioner were, or are, one and the same person, from the fact, that they were, or are, of the same name, in order to set aside, what purports to be a solemn judgment of a court of competent jurisdiction of a sister state. In the absence of proof to the contrary, if any presumption can, or should, be drawn, it must be in favor of the judgment, and that the attorney and commissioner were not, and are not, one and the same person. A different rule may exist in many other cases, and may properly. In the case of Birehwe.ll v. Field, &e., 8 Paige (N. Y.) Ch. 445, it was held substantially, that it would not be giving full faith and credit to the record of a judgment in a sister state, which record was fully authenticated in the manner prescribed by the law of the United States, if the party, against whom that judgment purported to have been obtained, was permitted to allege and show in the courts of another state, that no such judgment was in part given, or authorized to be entered by the court; but that the judgment record was made up and filed fraudulently by the clerk of the court without authority. And the Chancellor expressed the opinion, that if the'judgment was fraudulently entered by the clerk, without the authority of the court, whose judgment it purports to be, the proper remedy of. the complainant is to apply to that court to set aside the judgment, and to take the spurious record off its files. In Thomas v. Robinson, 3 Wend. 267, it was hold substantially, that in an action in one State on a judgment rendered in another by a justice of the peace, more is — 311 — required to be shown, than when an action is on a judgment of a court of record. The statute conferring the the authority, under which the justice proceeded, must be produced. If that shows the subject matter of the justice’s judgment to have been within his jurisdiction, and his proceedings appear to have been in conformity with the statute, then full faith and credit will be given to that judgment in the state, wherein an authenticated transcript thereof is produced to support the action. As before remarked, the defendant, James T. Waters, executed the warrant of attorney a year after the execution of the bond, authorizing a confession of judgment for the penalty of the bond, in case of breach of the condition, &c. The execution of this warrant of attorney could have been for no other purpose, than to authorize the attorney, to whom it is directed, to confess judgment, in case the first and second instalments of interest were not paid after the second Avas payable, if it was not paid. It seems to me, that the court did not err in overruling the demurrer to the bill. This is evident from the fact, that the defendant, Waters, received a letter from the plaintiff dated November 16, 1871, (which he, said J. T. Waters, files ivith his answer) in Avliich the plaintiff informs him, said Wafers, that if the interest is not paid inside of time, he will proceed to collect the principal at once. With full knowledge on the part of said James T. Waters, that the plaintiff claimed, if the interest Avas not paid according to the condition of the bond, the Avhole debt Avas due, he, Waters, made said poAver of attorney, by which he authoi’ized a confession of the judgment, which was confirmed as aforesaid; and noAv he claims, that the court should not enforce said judgment in whole, or in part; 1st, because the judgment is for the penalty of the bond, and not for the principal sum or interest mentioned in the condition of the bond; and 2d, because by the condition of the bond the principal sum of $5,000.00, Avith laiviul — 312 — interest payable half yearly, did notin fact become payable until the 1st day of January, 1875, long after the commencement oí this'suit. It is evident to my mind, that both plaintiff and defendant at the date of said 'warrant of attorney considered, and treated, the condition of said bond according to their understanding as amounting to this, to-wit: that if said Waters failed to pay the interest, according to the stipulations and provisions of the conditions ot said bond, then the plaintiff was entitled to demand the principal sum of five thousand dollars. And, with this understanding between the parties, the warrant of attorney was executed in good faith, and judgment was in fact confirmed substantially by the attorney, to whom said power was directed, according to the understanding and direction of the said Waters. And it seems to me, that under the circumstances said confession of judgment was authorized by said Waters; and that it is binding. The court, in rendering its decree in the cause, decreed the plaintiff the balance due on - the $5,000.00, mentioned in the condition of the bond, after deducting the payments, admitted in effect by the plaintiff and shown by the evidence, the defendant in fact not pretending to show, that he was entitled to any other credits — his only objection being, as urged before, that they were not proved by proper evidence. Ordinarily the onus of proving credits and payments is on the party Avho claims them. The plaintiff seems in this case to have admitted all the credits, that any evidence in the cause tends to prove or establish, and it seems to me, that the court committed no error in decreeing in favor of the plaintiff, against the said Waters, for the residue of said sum of $5,000.00, after deducting the credits, to which defendant was entitled. But it. is claimed by the appellants, that the court erred in rendering a personal decree against said defendant, Waters, for money; first, because it was im — 313 — proper to do ~o in case 0± foreign attachiiient against a non-resident; and second, because the court should not have ascertained, and decided upon, the amount due from said J. T. Waters, without at the same time determining other substantial questions in the cause, touching the property attached, or the question of fraud as to the conveyance of land from said J. T. Waters to his brother, George Waters, in the bill mentioned. Syllabus 2 Syllabus 3 rplie first propositioii, it s~eins to me, cannot be main-tamed. In the case of O'Brien ci al. v. Stephens €1 al,, 11 Gratt. 610, i~ was decided by the Court of Appeals of Virginia, that when the court has properly taken jurisdiction of a cause against an absent defendant, it must proceed to give relief accordmg to the principles of equity ; and if an absent defendant does not appear in the cause, there cannot he a persOnal decree against him; hut the attached effects can alone be subjected. But if lie (ices appear, there may h~c a personal decree only against him, or there may be both a personal decree and a decree subjecting the attached effects; and if the (lebtor appears and the attachment has not been sued out or levied, there may still be a personal decree against him ; or the plaintiff may, after the debtor's appearance, make the affidavit, sue out an attachm~nt, and have it levied on the effects of the debtor and have them subj ectc(T. Syllabus 4 At the time this suit was commenced, and since, the law of this State relative to foreign attachments in equity against non-res~c1cnts was, and is, the same substantially, as to the matters in question in this ease, as the law of Virginia, under which the decision aforesaid was rendered in ii Gratt.; and it seems to me, that the l)rinciples decided in that case, so far as they apply to our law, are rcasona1)~e and correct. Acts of Legislature of West Virginia of 1871, p. 181. It seems to me, that on the authority of said case reported in 11 Gratt. the court did not err in rendering a persoiial decree against the defendant, James T. Waters. A iid further, accord — 314 — ing to the principles decided in said case in 13 Gratt., 'the court did not commit an error, for which its decree should be reversed, in rendering a personal deorre against said Waters without disposing of the attachment, or attached effects, or deciding said question of fraud. The defendant, James T. Waters, failed to produce evidence to establish his defense sot up in his answer in every material respect; but I understand from his answer, that after he purchased the property, for which said bond was given, he occupied the same in the State of New Jersey, and there in said State resided for some time. While I am disposed to abide by, and be governed by, the principles decided in the case of Mayo v. Judah, 5 Munf. still it seems to me, that the principles of that case cannot, and ought not, to be applied to this cause under the circumstances. Upon the whole it seems to me, that the circuit court did not commit any error in this cause to the prejudice of the appellants,-and that the decree appealed from should be affirmed. But the appellee, Coleman, by his counsel argues, that the appeal should be dismissed, 1st, because no decree whatever against George Waters or affecting his interests has been entered ; and 2d, because he never appeared in the cause below, and being a party only by order of publication and attachment, his remedy to correct any error in the decree, by which he may be aggrieved, is by motion in the circuit court; and until he has resorted to his remedy in that,court, he cannot be heard in this Court. It is true, that George Waters has no right to appeal in this case from the decree rendered in the cause, for the reason that he was proceeded against as a non-resident by publication and never appeared in the cause in the court below ; but this fact cannot affect the appeal as to said James T. Waters — he having appeared in the cause and answered. For the foregoing reasons the decree of the circuit — 315 — cour^ of the county of Kanawha, rendered in this cause, must be affirmed, with costs in favor of the appellee, William S. Coleman, against the appellant James T. Waters, and damages according to law, and this appeal dismissed as to the appellant George Waters. And this cause is remanded to the circuit court, of the county of Kanawha, for such further proceedings therein to be bad, as may be. in accordance witb the principles settled in the foregoing opinion, and further according to the principles governing courts of equity. The other Judges cohcurred. JUDGMENT AEEIRMED AND CAUSE REMANDED.