Berg v. Commercial National Bank

Me. Justice Windes delivered the opinion of the court. Plaintiffs in error advance three propositions: 1st. That a member of a copartnership has no implied authority to execute on behalf of such copartnership a power or warrant of attorney to confess a judgment against such partnership, even for a partnership debt. 2d. A debtor has a right to favor one of his creditors to the exclusion of others by giving judgment or creating liens in other ways on his property. The right to prefer is his legal privilege. 3d. Where a motion to vacate a judgment confessed is based solely on the fact that the court was without jurisdiction to enter the judgment, if such fact be shown, the judgment should be vacated and the execution recalled and the alleged creditor left to his remedy in the ordinary manner. Taking these propositions as a basis, it is contended that it follows that the judgment in this case is erroneous and should be reversed. The first and second propositions are conceded, and properly so, by counsel for defendant in error, to be the law. The third proposition is not, in our opinion, tenable. It does not follow that because the warrant of attorney in this case was executed by Coxe, without the latter’s express authority, and therefore was invalid as a power, that the Superior Court was without jurisdiction, and it. should have set aside the judgment. The note to the bank, executed by Coxe in the firm name of Coxe & Berg, was good as a simple promissory note of the partnership, and, as to the bank, which had no notice, so far as appears from this record, but that the proceeds of the note were to be and were appropriated to the business of the firm, constitutes an individual indebtedness of each of the members of the firm, as against which no defense is shown. Counsel for plaintiffs in error make an exhaustive argument in their attempt tó show that the case of Sloo v. The State Bank of Illinois, 1 Scam. 428, sustains his contention that the judgment in the case at bar is void because of the lack of authority of Coxe to execute in the firm name the warrant of attorney, under which the judgment was confessed, and also that, the' 'later cases hereinafter referred to do not announce a different rule. He contends that Berg has the right to have the judgment annulled without reference to the merits. It has been repeatedly held that, in cases of judgments by confession, a court of law exercises a purely equitable jurisdiction, and that it will not disturb such a judgment upon a motion to vacate it, unless the moving party shows that he does not owe the amount of the judgment; or, in other words, that if it appears to the court that in an action on the note a judgment must be rendered against the moving party, the judgment by confession will not be disturbed. Hier v. Kaufman, 134 Ill. 215, 225; Farwell v. Huston, 151 Ill. 239, 245. In the Hier case, supra, the Supreme Court, after referring to the Sloo case, supra, and distinguishing the latter case from the one under consideration, says : “This court has decided in Colson v. Leitch, 110 Ill. 504, that ‘ a court of equity will not enjoin a judgment at law where there has been no service, unless it is alleged and proved that, if the relief be granted, a different result will be obtained than that already adjudged by the void judgment.’ Such relief will not be granted if it appears, as it does appear in the case at bar, that the debtor owes the amount of the judgment, and has no defense, either legal or equitable, to the debt for which the judgment is rendered. The same doctrine is announced by Freeman, in his work on Judgments (Sec. 498), where it is said: ‘ The better established rule undoubtedly is, that notwithstanding an alleged want of service of process a court of equity will not interfere to set aside a judgment until it appears that the result will be other»or different from that already reached.’ ” In the Farwell case, supra, the Hier case was re-affirmed, and the court say, in substance, that while a court of law exercises an equitable jurisdiction over judgments by confession, and holds that even where there is an absence of authority to confess, still relief will not be granted “if it appears that the debtor owes the amount of the judgment and has no defense, either legal or equitable, to the debt for which the judgment is rendered.” These cases being the later expressions of the Supreme Court, and both referring to the Sloo case, supra, we regard them as in effect modifying the Sloo case in so far as it may be held to justify the court in vacating a judgment, to confess which there was an absence of authority, when no defense upon the merits is shown. This being so, we deem it unnecessary to discuss in detail the several authorities cited by counsel. When a proceeding is taken in chancery to set aside a judgment obtained at law, the validity of the judgment will not be inquired into “ unless it appears that no debt is owing for which judgment could equitably be rendered, or that complainant is not equitably bound to pay any part of the debt.” Tompkins v. Lang, 74 Ill. App. 500; Colson case, supra. ' The latest expression of the Supreme Court to which our attention has been directed—Blake v. State Bank, 178 Ill. 184-—recognizes the equitable jurisdiction of a court of law in such matters, and holds that where a judgment is entered by confession, without authority of the defendant, he, if “ injured by it, may have it set aside upon motion.” Plaintiffs in error do not show that they have been injured. The judgment is affirmed.