Whitney v. Bohlen

Mr. Justice Wilkin delivered the opinion of the court: On August 3,1892, judgment by confession was entered in the circuit court of Putnam countjr, in vacation, against Philip R. Bohlen, in favor of appellant, George I. Whitney, for $15,600 and costs, upon the following note: “January 17,1884- “Five years after date I promise to pay to the order of -Jake Hill, $10,000, without defalcation, value received, with interest from date; and I do hereby empower any attorney of any court of record, within the United States or elsewhere, to appear for me and confess judgment against me as “of any term for above sum, with costs of suit,” etc. Which was signed by P. R. Bohlen. It had been duly assigned by the payee to Whitney prior to the entry of said judgment. At the October term, 1892, being the first term after the judgment, R. C. Graves made a special appearance as executor of Bohlen, and filed his motion to vacate the judgment, for the reason, among other things, that it was absolutely void for want of jurisdiction of the. person of the defendant, Bohlen, as shown upon the face of the record, — that is to say, “the paper purporting to be a warrant of attorney, filed in said cause, by its terms authorizes the confession of judgment thereon only in term time, and not in vacation.” He at the same time filed an authenticated copy of the last will of Bohlen. Whitney, by his counsel, moved to strike the motion from the files, upon the ground, as shown by an accompanying affidavit, that no notice thereof had been given the plaintiff. The appearance was not limited to the purpose of making that motion, but was general. The case was continued for the purpose of giving notice to the plaintiff, and at the next term (March, 1893,) the motion to vacate the judgment was overruled, as was also the motion to strike it from the files. Graves, as executor, appealed to the Appellate Court for the Second District, where the judgment of the circuit court was reversed and the cause remanded. At the March term, 1894, of the circuit court, the case having been re-docketed, on reconsideration of the motion to vacate the judgment by confession the same was allowed, and this appellant appealed to the Appellate Court. That court having affirmed the last judgment of the circuit court, this appeal is prosecuted. Two principal grounds of reversal are urged: First, that the executor, Graves, showed no right to enter the motion to annul said judgment; and second, that the Appellate Court erred in its first judgment holding that the power of attorney upon which the judgment was confessed did not authorize the confession in vacation. It appears that at the time Graves filed his motion to vacate the judgment, at the October term, 1892, he filed an authenticated copy of the will of Bohlen, but did not file a copy of his letters testamentary until March 6, 1893, the order overruling his motion being entered on the seventh of that month. Counsel for appellant contends that until such authenticated copy of his letters testamentary was filed, he, being a foreign administrator, could have no standing in the circuit court to have the judgment against Bohlen vacated. Conceding that the filing of the copy of letters testamentary was necessary to entitle Graves to a consideration of his motion, it seems clear that, having filed such copy before his motion was acted upon, he was not, as counsel says, a mere stranger to the suit. But, as said by the Appellate Court, no such reason was assigned as cause for striking the motion from the files, or otherwise raised in the circuit court, and could not, therefore, be properly made the ground of reversal in this or the Appellate Court. We regard the first point as wholly without merit. The principal question in the case is, did the power of attorney authorizing a confession of judgment upon the note in question authorize such a confession to be made in vacation? It will be observed that its language is, “to appear for me and confess judgment against me as of any term, for above sum,” etc. Does the language “as of any term” mean that a confession could not be taken except in term time? That the judgment in question was not confessed as of any term of court is clearly shown by the proceedings under which the same was taken, they being entitled, “Vacation, after March term, 1892.” It is conceded that the power to confess a judgment must be clearly given and strictly pursued or the judgment will be void. (Tucker v. Gill, 61 Ill. 236; Chase v. Dana, 44 id. 262; Frye v. Jones, 78 id. 627.) Other authorities might be cited to the same effect. While section 65 of chapter 110 authorizes the entry of judgment by confession, either in term time or vacation, without process, the prerequisite of such confessions is, if by an attorney, that he shall be duly authorized. If the language of the power was to confess judgment, without specifying that it might be done either in term time or vacation, then, under the rule announced in the majority opinion in Keith v. Kellogg, 97 Ill. 147, the holder of the note might elect to have the judgment confessed either in term time or vacation. But the power of attorney attached to this note is not silent as to whether the confession may be in term time or vacation, but clearly manifests an intention on the part of the maker of the note that the judgment should be confessed at some term of a court of record. The most that can be said from the language used is, that it is doubtful whether the maker of the note intended to confer the power to confess judgment only at a term of court, or that it might be in vacation as of a past or approaching term. But, under the rule of strict construction above referred to, that doubt must be resolved against the broader construction, and so we think, in any view of the case, this power of attorney cannot be construed as authorizing a confession in vacation. We are of the opinion that the Appellate Court has properly disposed of the questions raised upon this record in its decision published in 49 Ill. App. 435, and no good purpose would be served by extending this opinion in the discussion of these questions. Judgment affirmed.