H. S. Burr & Co. v. Frank Mathers & Co.

Smith, P. J. This was an action of attachment "brought by the plaintiffs against the defendants to recover $214.40, for merchandise sold and delivered by the former to the latter. The attachment was grounded «on subdivisions 3, 4, 7, 8 and 14 of section 521, Revised — 474 — Statutes. The defendants by their plea in abatement-, put in issue the alleged grounds for the attachment. There was a judgment in favor of the defendants upon a demurrer to the evidence, from which plaintiffs have-appealed. The plaintiffs, to maintain the issue in their behalf, introduced in evidence three several confessions of' judgment recovered before a justice of the peace for the aggregate sum of $800. They were in favor of one Grann against the defendants herein, and were all similar except in amount. These judgments recited, that: “Comes now, this third day of November, 1891, William T. Grann and files one note for $225, of date of' March 2, 1891, bearing interest at the rate of eight percent. from date until paid, and signed by F. Mathers & Co. By agreement of the defendant in the above-entitled cause, Frank Mathers, the summons is dispensed with, and judgment is hereby confessed by said' F. Mathers & Co. The justice considers the plaintiffs-have judgment for the amount of note, which is $225, and the interest, amounting in the aggregate, to $237,, and the costs in this suit. “John T. Murphy.” The justice, Murphy, testified that Grann came to-him and inquired whether a suit could be instituted by agreement, and that he looked at the law and advised him that it could be done, and that on the next day Grann and defendant, Frank Mathers, one of the firm of Frank Mathers & Co., which was composed of said Mathers and John Racco, came to his office and Gfann filed the three notes but no other writings, and Mathers agreed that the notes were correct and that summons-should be dispensed with, and thereupon he rendered, the judgment on each note. — 475 — The defendants were permitted to introduce in-evidence the executions and the returns thereon, which had been issued on the said judgments, to which the-plaintiffs objected on the ground that there were no-written statements made in support of any of said judgments. This objection, we think, was well taken,, and should have been sustained. At common law there were two kinds of judgments by confession, the one a judgment by cognovit actionem, and the other by confession relicta verifications. In the former the defendant after service, instead of entering a plea, acknowledges and confesses that the plaintiffs’ cause of action is just and rightful. In the latter after pleading and before trial the defendant both confesses the plaintiff’s-•cause^of action and withdraws or abandons his plea or other allegation, whereupon judgment is entered against. him without proceeding to trial. In order to sustain a judgment of either of these kinds it is essential that process regularly issued should have been served upon the defendant. Black on Judgments, sec. 50; Freeman on Judgments, sec. 554. There having been no process regularly issued- or served upon the defendant, the judgments cannot, therefore, be upheld as common-law confessions of judgment. This leads us to inquire whether they can be upheld under our statute. It provides that no confession shall be taken or judgment rendered thereon, unless the following requisites are complied with: First, defendant must personally appear before the justice in open court;. second, the]confession must be in writing signed by the defendant or by some person by him thereto lawfully authorized, and filed with the justice. Sec. 6274. In Loth v. Faconesowich, 22 Mo. App. 68, it was said: “Our statute contemplates two kinds of judgments by confession before justices of the peace. The one,, when the defendant is served with process, and, appear — 476 — ing, admits the indebtedness. In that case both parties are before the court, and the justice may enter judgment upon an oral admission, because such admission is evidence in a pending suit. Chamberlin v. Mining Co., 20 Mo. 96; Frause v. Owens, 25 Mo. 334. The second case is where the appearance of the defendant is voluntary and not in a pending suit, and where he appears for the purpose only of confessing judgment. In that case the confession must be in writing. ” It is, therefore, obvious that these judgments were not authorized either by the common law or the statute. The confession of Mathers not being in writing, the justice was without jurisdiction to enter the judgments. The recitals on the face of the judgments show they were rendered without jurisdiction, and, therefore, they must be considered a mere nullity for all purposes. Black on Judgments, sec. 218; Loth v. Faconesowich, supra; Oyster v. Shumate, 12 Mo. 580; Parker v. Griggs, 1 Southard (N. J.) 161. It, of course, inevitably follows, that, since the judgments were invalid, the executions issued thereon were likewise a mere nullity, and not admissible in evidence. These judgments were not based upon mere informal or irregular written statements or confessions, but upon no writing whatever, and are easily distinguishable from How v. Dorscheimer, 31 Mo. 349, and the other cases cited by defendants. The confessions of judgment were also subject to the further objection that the defendant Racco, one of the partners, was not present, nor is there a pretense that he in any manner authorized the justice to render said judgments against him. Mathers, as a partner, could not confess a judgment against the firm or against his partner and himself, except in the manner indicated in the statute. — 477 — The law is quite well settled ■ that no partner or other joint obligor is bound by a judgment- confessed by his copartner or co-obligors without his express authorization. Freeman on Judgments, sec. 545; McCleery v. Thompson, 130 Pa. St. 443; Hopper v. Lucas, 86 Ind. 43; Elliott v. Halbrook, 33 Ala. 659; Soper v. Fry, 37 Mich. 236. The interest of Raceo in the property was not subject to the lien of the executions. The judgments and the executions were void as to him in any view of the case. If these confessions of judgment by Mathers were fraudulent devices to hinder and delay other creditors of the defendants, they were admissible in evidence to maintain the affirmative of the issue in the attachment branch of the case. But it is quite difficult to understand upon what ground or for what purpose the executions were admissible. The defendants contend that they were admissible to prove that the merchandise of the defendants, which was seized by the constable under said executions prior to the levy of the plaintiffs’ attachment thereon by the sheriff, was in custodia legis. It is only where property is lawfully taken by virtue of legal process that it is in the custody of the law, and not otherwise. Campbell v. Williams, 39 Iowa, 646; Cooley v. Davis, 34 Iowa, 128; Gilman v. Williams, 7 Wis. 329. As has already been remarked, the executions were issued and levied when there was no judgment, no authority for the execution whatever, and' so that the defendants’ merchandise, according to the rule just stated, was not in the custody of the law when seized under the attachment. Brit suppose the contrary of our conclusion is true, still that cannot help the defendants’ contention, for the reason that the executions and the return thereof were not admissible to prove any fact in issue in the case. — 478 — Looking at the allegations in. the affidavit for the attachment, and the plea in abatement, and it becomes quite manifest that these executions did not tend to prove or •disprove any issue of fact that thus arose in the case. •Such evidence was only calculated to divert the attention of the jury from the decisive issues in the case, and .should not have been admitted. During the progress of the trial, the plaintiffs •offered to prove, by a witness, some admissions the defendants had made at the date of the suing out of the attachment, as to their indebtedness, and when it ■accrued, which offer was by the court rejected. This was competent evidence, and should have been admitted •along with the other evidence, as tending to sustain the ¿grounds of the attachment. "While the evidence as presented by the abstract is ■not as full and complete as it should have been, still we think there was enough to have entitled the plaintiffs to a submission of the case to the jury under appropriate instructions. The judgment, therefore, will be •reversed and the cause remanded. All concur.