Floyd County Agricultural & Mechanical Ass'n v. Tompkins

Gregory, J. The appellants, by Samuel H. Owen, a receiver appointed by the Court of Common Pleas of Floyd county, filed a complaint against the appellees for a re — 349 — view of the proceedings and judgment of the Floyd Circuit Court, wherein the defendants were plaintiffs and said association was defendant. The complaint avers that, on the 24th of April, 1861, the defendants filed a complaint in said court against the appellant, and on the 25th (the next day) a judgment was rendered, on the complaint, against said association, and in favor of the defendants, for $1,150 and costs; that no process was served upon the association, nor had said association any knowledge or notice whatever of the pend-ency thereof; that Alexander Fowling, Esq., who entered an appearance for the association, and suffered judgment to he rendered against it for want of a plea, had no authority so to do, except a writing given him by Thomas FT. Collins, one of the plaintiffs in the suit, who therein styled himself president of said association, and authorized Folding to appear for said association in said suit, and confess a judgment for the amount of a note filed with the complaint; but Collins had no authority from said association to authorize such appearance or confess such judgment, nor was there any proof made of such written authority; nor was there any affidavit made or filed by said association, or any person on its behalf, that the debt for which said judgment was rendered was just and owing, and that such confession was not made for the purpose of defrauding its creditors; but such judgment was suffered to be taken by default to avoid the necessity of proof of such authority and of such affidavit; that the written authority given by said Collins to said Fowling, to enter said appearance, was filed by said Fowling with the papers in said suit, but can not now be found; that after said judgment had been rendered, the said defendants sued out an execution on said judgment, and on the 24th of November, 1861, said execution was returned by the sheriff of said county, no property found, etc. That afterward, on, etc., the said defendants filed in the Court of Common Pleas of said county their com — 350 — plaint to obtain proceedings supplementary to execution against said association and John B. Winstandly, who was treasurer thereof, and, as such treasurer, had some money in his hands belonging thereto; said defendants filed in said Court of Common Pleas, with the complaint, last mentioned, the original files pertaining to said suit in said Circuit Court, consisting of the complaint, the written authority given to Doiding by Collins to enter an appearance for said association, and the execution which was issued on said judgment; since that time said files have not been in the custody of the clerk of said Circuit Court, and that therefore a complete record thereof can not be made; that since said files were so taken from the records of said Circuit Court and placed on file in said Court of Common Pleas, by the defendants, in their proceeding supplemental to execution, said written authority, given to Bowling by Collins, has been, by some person unknown to the plaintiff, abstracted or lost, and a copy thereof can not be furnished; that it was substantially a power of attorney, authorizing Bowling to appear and confess a judgment in said suit for the amount of the note filed with said complaint, and was signed, “ Thomas S. Collins, President Floyd County Agricultural and' Mechanical Association.” Copies of said complaint, docket entry, and execution are filed and made parts of the complaint in the case in judgment. It is further averred that at the time of the rendition of said judgment, the association was and has ever since been insolvent, and without property or assets sufficient to pay all its creditors; and by said unjustifiable proceeding, if said judgment and execution shall not be set aside, the said defendants will obtain undue advantage over the other -creditors of said association, inasmuch as by proceedings supplementary to execution they may have obtained a lien on the property of said association, which will prevent an equitable distribution thereof. Prayer, that the record of — 351 — said judgment be corrected and perfected, by placing on file a copy of said power of attorney to said Dowling for a review of the judgment and execution; that the same may be reversed, annulled, and set aside for the manifest errors of law in the proceedings therein before stated; and for general relief. The docket entry filed with the complaint shows that the appellant appeared to the action by Alexander Dowling, her attorney; and, on motion of the appellee, a rule was entered against the defendant' to answer on or before the ,next calling of the cause; and that, the defendant failing to answer, the case was set down for trial upon the complaint, exhibits, and proofs adduced; and that, upon consideration, the court found that there was due the plaintiffs from said defendant the sum for which the judgment was rendered. A demurrer was sustained to this complaint in the court below, and this appeal is prosecuted to reverse the judgment rendered on the demurrer. • The statute in relation to proceedings to review judgments provides, that “ the complaint may be filed for any error of law appearing in the proceedings and judgment, or for material new matter discovered since the rendition thereof, or for both causes, without leave of court.” 2 G. & IT. 280, sec. 587. It seems to us clear that there is no error of law appearing in the proceedings and judgment sought to be reviewed. It is insisted that as Collins was one of the plaintiffs, he could not, in his capacity as president of the corporation sued, give a power of attorney to enter an appearance to the action. That may be admitted for the sake of the argument, and yet it does not follow that there is any error appearing in the proceedings and judgment. Collins, as the chief officer of the corporation, was the proper person to sign the power of attorney; if he, however, acted without authority, this is not the appropriate remedy. The power — 352 — of attorney was regular on its face; it plainly authorized an appearance to he entered; and the fact that it further authorized Dowling to confess judgment, did not in any way abridge his power to enter the appearance. But after an appearance, the judgment being rendered for want of an answer, the process by which the defendant was brought into court forms no part of the record. 2 G. & H. 273, sec. 559. It is claimed that it was the duty of the court below to relieve the party for whom the attorney appeared without authority, under the provisions of section 775, (2 G. & H. 328,) at any time before payment of the judgment; but clearly the remedy under this last section, if the party is entitled to it, can not be obtained in a proceeding for review. It may be, on a proper application, showing that a judgment had been rendered by default, or for the want of an answer on an appearance by an attorney without authority, and without notice to defendant, even after judgment, the court would allow an issue to be formed, and the merits of the case tided; but the court, in order to protect the plaintiff from suffering by the act of the attorney, and at the same time to save the defendant from injury, will let the judgment stand, but stay all proceedings, and let in the defendant to plead if he has any defense. Danton and Others v. Noyes, 6 Johns. N. Y. 296; Ellsworth v. Campbell, 31 Barb. 134; Pierson v. Holman, 5 Blackf. 482. But it is insisted that this complaint, although not good i.n review, ought to be sustained as a bill in chancery to set aside the judgment for fraud. There is no allegation that the debt for which the judgment was rendered was not due, and owing from the defendant to the plaintiff therein at the time of its rendition. There can be no ground for setting aside the judgment as against the appellant. The question of priority of liens between creditors — 353 — might present a very different question, hut that is not now before us, and we decide nothing about it. Thomas L. Smith and M. G. Kerr, for appellants. John FT. Stotsenberg, Thomas M. Brown, and John S. Davis, for appellees. Judgment affirmed, with costs.