Dionne v. Matzenbaugh

Opinion on the Court, Lacey, J. This was a motion made in the Circuit Court by appellants, to open up a judgment in favor of appellee, against them, entered by confession, by virtue of a power of attorney attached to a promissory note, given by appellants to appellee, dated November 12,1891, for $376, due December 1, 1892, with six per cent interest per annum, from date, based on the affidavit of the appellants, showing that the sole and only consideration of the note was an agreement by appellee, with them, not to prosecute appellant Siliana’s son David, for the crime of forgery of a promissory note, signed by himself, payable to appellee for money loaned, for $300, to which he had forged the names of John Baron and John Euchner as sureties, dated January 12, 1888, due in ninety days, with eight per cent interest, and the destruction of the note. In fact, the only consideration of the note was the compounding of a felony. It is true, there were counter affidavits filed, showing that the consideration of the note was as security for David, the son of appellant Siliana, to secure his note, to which the forged names were attached. But the court could not try such issue on affidavits. If the affidavit of the appellant showed a prima facie case of-a good defense, as here, it was the duty of the court to open up the judgment and allow such defense to be made, and the issue to be tried by a jury. It is insisted that the affidavits failed to show a good defense, or that the consideration of the note was the compounding of a felony. But we think it does. It shows a state of facts, if true, that would void the note. Haltham v. Kuntz, 17 Brad. 434. This case is not like and is distinguished from, the one of Ford et al. v. Crotty, 52 Ill. 315. Here, as in the case of Haltham v. Kuntz, supra, the appellants were not the makers of the forged note. As said in the last cited case, the indebtedness of the principal in. the forged note “ would be a sufficient consideration to support a promise, in writing, by appellants to appellee, to pay tbe debt/ and in absence of proof to the contrary, the presumption would be that snob indebtedness was the real consideration for the promise; but here all parties agree that the promise was in consideration that the plaintiff would not “ prosecute the criminal charge against H. R. Bhmtz.” In the case at bar, the affidavit of appellants shows that the consideration for their signatui’es- to the note in question was the agreement not to prosecute David Saindore for his crime of forgery, who was the son of the appellant Siliana by her former husband. The court erred in not granting the motion and in not opening np the judgment and allowing the defense. The judgment of the court below is therefore reversed and the cause remanded.