Wilson ex rel. Farrand v. Davis

By the court, Wing, J. It is objected that the statute did not authorize an appeal in this case, because an affidavit was not made. It has been repeatedly decided in this court that an appeal did lie in a case like this, without an affidavit by the party appealing, as the case is embraced by the first section of the justices’ act of 1845 (Sess. L. 1845, p. 98); and the cases in which affidavits are required are specially specified, and this is not one of them. As this question has been put at rest by the amendatory act of 1846 (Sess. L. 1846, p. 285), it cannot now be a matter of any particular importance that the reasons which have influenced the court in adopting this construction of the statute, should be published. It is further objected that Farrand, the assignee of the original judgment, claimed the appeal from the decision of the justice and entered into a recognizance, instead of Wilson, the plaintiff in the suit. The fourth section of the act provides, that “ if any party shall ajipeal from a judgment rendered by a justice of the peace, as herein before provided, such party, his agent or attorney, shall, within five days, enter into a recognizance,” &c. We think that Farrand must be considered to be the [160] agent and attorney for tlie nominal plaintiff. He is the assignee of the judgment; the plaintiff has authorized him, by the sale to him, to prosecute the suit, and to do all matters necessary to make it available to him, at the least, if the plaintiff does not interfere. The assignment of the judgment operates as a power of attorney, irrevocable to the assignee, to prosecute and collect the judgment in the name of the assignor, the plaintiff in the judgment. The only other point made in the case which we deem it necessary to notice, is, that the original judgment was void, and did not, and could not form a sufficient consideration for the alleged assumption of the defendant. The questions raised by this objection upon the first section of the justices’ act of 1833, have been repeatedly considered and decided by this court. The reasons urged in support of this objection are, that the statute required, that to give jurisdiction to the justice, the confession should have been made •“ in writing, signed by the person making the same, in the presence of the justice, or one or more competent witnesses;” and the judgment was rendered by the justice without his having any written confession of judgment. It is urged by plaintiff’s counsel, that certain authorities-cited by him, having a strong hearing upon, this question, have not hitherto been considered by the court in making up their decisions upon this question. It. has been uniformly held by this court, that to give validity to a judgment hy confession, the justice, in rendering the same, must strictly pursue the authority given to him by the statute; and that the facts necessary to give him jurisdiction must affirmatively appear in his proceedings, and cannot be presumed. Wright v. Warner, 1 Doug. Mich. R. 384; Clark v. Holmes, id. 390. In the case of Beach v. Botsford, id. 199, the confession was written and signed by the defendant, but it was not witnessed: and it was decided that the confession was not made in conformity to the requirements of the statutes, and, therefore, did not give the justice jurisdiction of the defendant. In the case of Spears v. Carter, ante 19, the record of the justice stated, that the “judgment was rendered upon the written confession of defendant, in favor of the plaintiff;” but no such written confesssion was shown to have been made. The judgment was held to be void, for two reasons: 1. That it did not appear that the justice acquired jurisdiction of the [161] defendant, or of the subject matter of the suit. 2. The cause of action! was not stated in the judgment. In this cause, it does not appear from the record or the files of the justice, whether it was for damages for slander, false imprisonment, or any other cause of action of which the' justice had not jurisdiction; there is no reference to any note or contract in the judgment. There is no pretence that a written confession was ever made. In the cases cited it was decided there must be a written confession, in the presence of the justice, or one or more competent witnesses, and that such confession must be presented to the justice before he could acquire jurisdiction of the party. Plaintiff’s counsel insists that Justice Strong had jurisdiction of the' amount, of the jrersons and the place — that when the parties appeared before him, and had stated their case,-and he put pen to his docket, at that moment he was in possession of the case, with full power to carry it on to a close; and if the justice erred in any of the subsequent steps in taking the confession, it did not oust Mm of his jurisdiction — that the proviso only regulates the mode of exercising- jurisdiction-. The same section of the act specifies the actions and amounts of which justices shall have jurisdiction. The mode in which this jurisdiction is to be exercised in cases of confession, is prescribed in this section; the other sections of the act prescribe the mode of its exercise-in other cases. The appearance of a defendant may be enforced by process, or he may voluntarily appeal, and in the latter case an amicable suit may be entered; but this supposes a denial by the defendant of the cause of action — otherwise there is notMng to try. In the caption of the judgment the justice has written “• Amicable suitj” but it was not such a suit: it puiported to-be,, as appeared from the recital in the judgment, a confession of judgment. That part of the section which: authorizes the justice to enter judgment upon confession, provides, that “ judgments by confession may be entered by any justice of the peace for any sum not exceding $150,.provided such confession be in writing, signed by the person- making the- same, in-the presence- of the justice, or one or more competent witnesses.” Until there has been a literal compliance with this provision of law, the justice cannot have jurisdiction of a defendant. The cases cited by the plaintiff in support of his position, are, 2 Salkeld 674; 17 John. R. 145; 2 Cowen 548; and 4 John. C. R. 91. In these cases the jurisdiction of the court or officers to ren [162] der j eklgmeiit or-make orders, was denied. It was urged that because their proceedings were defective in some respects, they were void; but the court held, that because the tribunals in the exercise of conceded powers had erred, their acts were voidable, only — not absolutely void. In the last case cited, the chancellor, whilst he does not admit that the proceedings which were objected to as void, were shown to be so, saysf that the complainant is estopped from questioning them, as he, by Ms acts and acquiescence, has led the defendant to expend large sums of money upon the lands purchased by virtue of those proceedings. We cannot pierceive any good reason for overruling the decisions .heretofore made by this court upon this point, and we think the judgment read in evidence in this case was void, and, therefore-, cannot furnish a valid consideration for the promise of the defendant set forth in plaintiff’s declaration; Certified accordingly.