Henning v. Libke

Mr. Justice Adams delivered the opinion of the court. It is contended by appellant’s counsel that the affidavits of Fred E. and Emma Buenger were erroneously excluded. Section 6 of chapter 101 of the Revised Statutes is as follows: “ When any oath, authorized or required by law to be made, is made out of the state, it may be administered by any officer authorized by the laws of the state in which it is so administered, and, if such officer have a seal, his certificate, under his official seal, shall be received as prima facie evidence, without further proof of his authority to administer oaths.” The Supreme Court has held that, under this section, it is necessary to the sufficiency of a notary’s certificate that it shall be stated in the certificate that the notary has, by the law of the foreign state, authority to administer oaths. Smith v. Lyons, 80 Ill. 600; Ferris v. Commercial Nat. Bank, 158 Ill. 237; Trevor v. Colgate, 181 Ib. 129. Appellant’s counsel contends, citing Figge v. Rowlen, 84 Ill. App. 242, that it may be shown by evidence other than the certificate of the notary, that he was authorized to administer oaths; but, although the insufficiency of the certificate, in failing to state that the notary was so author' ized, was specifically pointed out by the objection, appellant offered no further proof of his authority. The certificate of the clerk of the Indiana Circuit Court, attached to Emma Buenger’s affidavit, does not state that the notary was authorized to administer oaths, and, even if it had so stated, it would not, as we think, have availed appellant, because such certificate is not authorized by the statute of this state. The affidavits of Fred E. and Emma Buenger were properly excluded. In Henning’s affidavit he states, in substance, that he went with F. E. Buenger to Albert Libke’s house, as a mere friendly act, to inquire whether Albert would lend $300 to Buenger; that Buenger there stated that he owned two lots and houses worth $7,000, and was amply able to repay the money; that Libke said he would make the loan; that he had the money in bank and would draw it, and be prepared on a certain evening to make the loan, and he requested affiant and Buenger then to call; that they 'called, as requested, and Libke had the note prepared and the money ready; that he then gave the $300 to Buenger, and ' handed the note to Buenger and wife to sign; that up to that time nothing had been said about affiant signing the note, nor did he understand that he was to sign it; that the loan was not made in consideration of his signing the note, or becoming surety; that Libke afterward said: “ John, you had better sign the note,” and that affiant signed it without knowing its character or contents; that affiant can not read the English language, which Libke knew; that the note was not read to him; and that he received no consideration therefor; that Minnie Libke was present on both occasions when Buenger and affiant called on Albert Libke, and heard all the conversations which occurred, and that she was not an indorsee for valuable consideration before the maturity of the note; that affiant speaks and understands the English language very imperfectly, and is not familiar with business methods; that he first knew of the judgment August 6,1901, when a copy of the execution was served on him; when he at once went to his attorney’s office, where he was informed that said attorney was sick, and would not' be in his office till August 16th; that affiant filed a claim of exemption; that he was in very poor health, and was confined to his bed, and under a physician’s care, from August 23d till September 9th, and September 10th he went to his attorney’s office to have his affidavit prepared. The affidavit of Charles W. Lamborn is, substantially, that he is an attorney at law, and that he was absent from Chicago from July 24th till August 19, 1901; that Amelia Henning, wife of John Henning, brought to him a chancery summons September 5th; that he acquainted himself with the entry of the judgment in question, and informed Henning of its nature September 10th; that Henning speaks and understands English with difficulty, and seems unacquainted with business and legal matters. Albert Libke’s affidavit is, in substance, that he is Minnie Libke’s husband; that he made the loan for which the note was given, as his wife’s agent, and that the money loaned was hers; that Henning brought Buenger to affiant’s house, and said that he, Buenger, desired to borrow $300; that Henning, in the presence of affiant and his wife, said Buenger owned two houses and lots; was well fixed, and was good for the money, when affiant replied that might be true, but as he did not know Buenger, his wife would loan the money if he, Henning, would sign the note with him; that Henning said he would do so; that Buenger was good and honest, and that he would not object to signing his note for $1,000, and that affiant then requested Buenger to call on a certain evening, later, and get the money; that Buenger and wife and Henning came later, the Buengers together and Henning a few minutes after them; that affiant produced the note ready for signatures, and Buenger and wife signed it and handed it back to affiant, when affiant turned to Henning and told him that he must sign, as he had promised, when Henning said, “ All right,” and signed the note; that Henning well understands the liability attached to the signature of a note; that a short time before the occasion in question one Snyder called on affiant for a loan, which affiant refused to make without security; that Snyder then went to Henning, and the latter refused to sign a note with him, saying he, Snyder, had too many debts, and when Buenger got the money in question Henning said, “ This ain’t Mr. Snyder; Snyder got too much debts, but Buenger is all right;” that July 1st Henning conveyed to Herman Keipert, his brother-in-law, lot 30, etc. (describing it), and August 3d judgment herein was entered. August 6th Henning filed a debtor’s schedule, and August 26th a creditor’s bill was filed; that both affiant and his wife had known Henning a long time, but neither of them knew Buenger or his wife, and relied solely on Henning to repay the loan.' The affidavit of Minnie Libke, who, Henning in his affidavit says, heard all the conversations which occurred and knows all the facts and circumstances, corroborates that of Albert Libke. It is apparent from the affidavits, including Henning’s, that Henning was active in trying to procure the loan for Fred E. Buenger. He went with the Buengers to Libke’s house for that purpose. That neither" of the Libkes knew either of the Buengers, but both knew Henning, is not denied by the latter. If Albert Libke, on the first occasion of Henning visiting him with Buenger, promised to let the latter have the money, nothing having been said about Henning signing as surety, why did Henning go with Buenger to Libke the second time ? He says that he went with Buenger the first time merely as a friendly act; but this does not account for his second visit, because, according to his statement, what he went for the first time, namely, to procure Libke’s consent to make the loan, was accomplished at that time. His statement that he signed the note not knowing anything of its character or contents, seems to us incredible. He knew that a loan was being made to Buenger of $300, and he knew that on account of that loan the Buengers were signing a paper. He admits, in his affidavit, that Libke told him that the paper was a note, saying “ John, yon. had better sign the note,” yet we are asked to believe that he did not know that he incurred any liability by signing it. The trial court did not so believe, nor do we. On the contrary, we are of opinion that he knew exactly what he was doing, and that he signed the note as surety at the same time the Buengers signed it, and as he had promised when he first called at Libke’s house with Buenger. The judgment will be affirmed.