Havens & Geddis Co. v. First National Bank of Pana

Mr. Justice Wilkin delivered the opinion of the court: A cross-motion to strike the original motion from the files was duly entered and overruled. It was insisted by the bank in the Appellate Court that the circuit court erred in so overruling the cross-motion, and that insistence is renewed here. The question is thus raised at the threshold of the case, whether appellants, as judgment creditors of the defendants in the confessed judgments, can, by motion upon any of the alleged grounds, attack such judgments. Black, in his work, on Judgments, (vol. 1, sec. 293,) speaking of the right of parties to" attack judgments for fraud, says: “Hence a judgment confessed without any consideration, and with fraudulent intent, may be questioned by other judgment and execution creditors of the defendant, and as to them the judgment and execution thereon will be vacated and set aside. * * * But inasmuch as the law always favors the stability and finality of judgments, it is held that a stranger who thus seeks to impeach a judgment as a fraud upon his rights must show the fraud by clear and satisfactory proof.” And in the next section he further says: “It is no ground for the intervention of third persons that fraud has been practiced upon the debtor,—it must be fraud practiced Toy the debtor, either alone, or, as is more commonly the case, in collusion with the plaintiff in the judgment.” So Freeman on Judgments, (vol. 2, sec. 558 a,) after stating that the effect of a judgment by confession is not substantially different from the effect of one entered in a contested litigation, uses this language: “Strangers to the judgment may impeach it on the same grounds as other judgments are impeachable upon, and may therefore show that it was given and accepted for the purpose of hindering, delaying- or defrauding creditors or forcing them to make a compromise, or may show that its date or recitals are not true, but cannot impeach it for fraud- practiced on the debtor in obtaining his confession, where there was no collusion between him and his creditor.” It is only necessary to call attention to the twelve reasons above set forth and incorporated in the motions why the judgments confessed in vacation should be vacated or modified, to show that, within the rule announced by these authors, appellant had no standing in the circuit court. It was not fraudulent for the debtor to confess judgment in favor of a creditor, though he was at the time insolvent. Hier v. Kaufman, 134 Ill. 215. Neither is it pretended that the third allegation, to the effect that there was no consideration for the confessed judgments, ife supported by the evidence. Both courts below have found to the contrary. The only ground upon which either court modified those judgments was, that attorneys’ fees were improperly included in them,—and this not because it was illegal to provide in the notes for such fees or because they could not properly have been included in the confessions if they had been entered in term time, but solely because the clerk had no power to determine the reasonableness of the fees. It is not even claimed that the amounts allowed are unreasonable or inequitable. All that can be said is that the judgments are too large, and that under the rule announced in Campbell v. Goddard, 117 Ill. 251, the defendants to the judgments would have had the right to have them modified. That the bank caused the amounts included as attorneys’ fees to be added for the purpose of hindering, delaying or defrauding other creditors is not claimed, much less that defendants, or either of them, in any way colluded with it to accomplish such purpose. Adam v. Arnold, 86 Ill. 185, was a case not unlike this, and it was there held that a judgment by confession under a power for a sum in excess of that due cannot be set aside at the instance of a stranger, although he be a creditor of the debtor; that the defendant in the judgment alone can complain, and he should have the error corrected, on motion, in the court below. To the same effect is Kellogg v. Keith, 4 Ill. App. 386. On the theory that the motion was properly entertained by the circuit court we think the decision of the Appellate Court is right. There is no equitable or just principle upon which appellant could, under the facts of the case, be given a preference over appellee. We are, however, clearly of the opinion that, on the authorities above cited, the circuit court erred in overruling the motion to dismiss- the proceeding, and for that error its judgment, as well as that of the Appellate Court, must be reversed and the cause remanded to the circuit court, with directions to dismiss the motions at the cost of the parties making the same. „ 7 , , -Reversed and, remanded.