Gibboney v. Gibboney

Murphy, P. J. On tlie 29th day of January, 1878, the appellant filed his declaration in the Superior Court of Cook County, against the appellee, counting specially on a promissory note, adding the common counts. At the same time the appellee, by Bobert S. Hill, his attorney, also appeared in open court and filed a warrant of attorney, executed by the appellee, and a cognovit confessing judgment in favor of the appellant for the sum of sixteen hundred and five dollars, with costs. The court thereupon entered the following order of judgment: “ Therefore, it is considered by the court that the plaintiff do have and recover of and from the defendant, his said damages of sixteen hundred and five dollars, in form as aforesaid, by the said defendant confessed, together with costs.” This order was entered by the court at its January term, 1878. Afterwards, on the 9th day of April, 1878, the same being one of the days of the April term of said court, on motion of the appellee, without any evidence or showing of any kind, the court vacated the judgment so entered at the January term, two terms of the court having intervened, and dismissed the suit. This was excepted to by the appellant, who prayed an appeal to this court, and assigns for error the ruling of the court below in vacating the judgment and dismissing the suit. This being a judgment by confession by virtue of a warrant of attorney, and without actual notice to the appellee, it would be competent for the court, upon a proper showing, to so far vacate such judgment as to permit the appellee to defend against the same, to permit an issue to be made up and tried by a jury, as to whether upon the merits of the case he has a defence to the whole or any part of said judgment. But we are unfamiliar with any rule of law or practice by which such right to defend in such cases will be ordered on motion, unless upon the face of the record or some showing as a foundation for such motion, it shall appear, prima facie at least, that the defendant has a defence in whole or in part to the said judgment upon the merits. In this case there is nothing appealing upon the face of the record to justify such action of the court. The warrant of attorney, by virtue of which the judgment was confessed, does not appear in the record. We are therefore unable to inspect it, and in its absence must presume it was sufficient to justify the court in entering such judgment. There being no affidavits or other showing of any kind made by the appellee in support of his motion, we think it was error for the court below to vacate the judgment and dismiss the suit, for which error the judgment of the court below is reversed and the cause remanded. Reversed and remanded.