Kern v. Chalfant

[490] By the Court ElaNDRAu, J. The statement upon which ' the judgment was confessed and entered, is not as full, nor is it as well drawn as it should have been. Tet we do not think it is so lacking in matters of substance as to be void. The statute (Comp. /Stats., 642) requires the statement to be signed and sworn to by the Defendant. Both these requisites have been complied with. The Defendant’s name appears to the affidavit by which he verifies the facts stated above. This is a sufficient signing. It authorizes the entry of judgment for a specified sum. It being both for money due, and to secure the Plaintiff against a contingent liability, we will examine the two clauses separately, and see whether the statute has been complied with. Subdivision 2 of section 2, is as follows : “ If it be for money due, or to become due, it must state concisely the facts out of which it arose, and must show that the sum confessed therefor, is justly due or to become due.” The allegation in the statement is as follows : “ This confession is for a debt justly due to the Plaintiff, arising upon the following facts: twenty-eight hundred dollars for money loaned by the Plaintiff to the Defendant, and now due Plaintiff.” It is difficult to see how much more could be said in confessing a judgment for money loaned. The loan is the whole transaction, the only fact out of which the liability arises, and when you have said that the Plaintiff loaned the money to the Defendant, and that it is due, the facts are all narrated. Where the money is due upon some transaction such as the purchase of goods, or land, a concise statement of the fact that the Plaintiff had sold the Defendant dry goods, or a horse, or land, that it was worth such a sum, and had not been paid for, and was due, would be necessary and sufficient, but it would be after all but a showing that the judgment is confessed upon a valuable and just consideration, which is the purpose of the statute in requiring the facts out of which the indebtedness arose to be stated. What can form a better consideration for indebtedness, and a more solid foundation for a [491] judgment tban a loan of money from tbe Plaintiff to the Defendant. This statement says in so many words that the judgment is confessed for a debt justly due, arising out of the fact that the Plaintiff had loaned to the Defendant twenty-eight hundred dollars. As to this part of the j udgment, it is sufficient. The balance of seven hundred dollars is stated thus : “This • confession is for * * * * * seven hundred dollars for a liability incurred by Plaintiff in indorsing a bond for the De- ’ fendant which bond is for that amount.” This portion of the judgment we cannot uphold. The object of the statute, as we have observed, is to mate the record show for itself a fair and valuable consideration for the judgment. It has been fre-, quently held that the record must show more than the existence of a promissory note, it must also show what was the consideration for the note ; and the same would be true of a bond or any other contract for the payment of money. This is to prevent fraud. The same principle may be applied to the endorsement of paper, when such a liability is alleged as the consideration for a judgment. The mere statement that a note had been indorsed by the Plaintiff for the Defendant would not be sufficient; some facts would be required, showing that the liability was incurred in good faith. The allegation that the Plaintiff endorsed a “ bond ” for the Defendapt, is still more defective. ¥e might infer that the Plaintiff had written his name upon the back of the bond, but whether that would create any liability is not clear. The judgment cannot be sustained for the seven hundred dollars. - The Court below finds distinctly that there was no fraud in fact in confessing the judgment, we see no difficulty therefore in allowing it to stand for the amount due for money loaned, and ordering it cancelled for the balance. Kern, in executing the deed with covenants to Thompson, did not estop himself in any manner. He was merely the attorney of the grantor. It was the principal who covenanted, and no one else is bound save those in privity with him. His agent is not of this class. The point made by the counsel for the Plaintiff in Error, that the judgment could not be disturbed after a year from [492] the time of its entry, is founded upon section 94 on page 544 of the Compiled Statutes. This section is inapplicable to the present case; it is intended to afford relief to parties against whom judgments or orders may have been taken, and limits the time within which such relief may be granted, to one year after notice has been received of the judgment, order or proceeding. The Plaintiff in Error has no right to raise a question on the purchase of the land under the mortgage by the admin-istratrix. No one can call that act in question save the eesúá que trust. Baldwin vs. Allison, 4 Minn. R., 25. There was a preliminary motion in this case to dismiss the writ of error on the ground that a judgment in a case purely equitable could only be reviewed on appeal. The same question was presented to this Court in the case of Mawke and wife vs. Banning and Bucknell, 3 Minn. R., 67, and was decided by sustaining the writ. The brief of counsel for the Defendant in Error is published by the reporter, but for some reason no opinion was given upon the point. ¥e think a writ of error will lie to any final j udgment. The judgment is reversed, and judgment ordered to be entered, decreeing all that portion of the judgment by confession which is based upon the liability incurred by indorsing the bond to be void; the balance to stand.