Edgar v. Greer

Stockton, J. A judgment by confession entered by the clerk of the district court in vacation, as authorized by the statute, (Code, section 1837), if founded upon a sufficient written statement of the party, verified by his oath, and filed with the clerk, becomes, when read, approved, and signed by the judge at the next term of the court, (Code, section 1578), the judgment of the court, in the same sense as any other final adjudication, in any other cause. Though entered by the clerk, it is not to be treated as a judgment rendered by him, but by the court, and is subject to revision in this court in the same manner as any other judgment of the district court. Consent tolerates error ; and we will not enter into the consideration of any errors assigned, which affect only the form in which the judgment is entered, or which ought to be considered as waived by the consent of the defendant. The Code prescribes the manner in which judgments by confession may be entered by the clerk of the district court. The confession must be for a specific sum; and if for money due, or to become due, a statement in writing must be made and signed by the defendant, verified by his ■ oath, and filed with the clerk, setting forth concisely the facts out of which the indebtedness arose, and that the sum confessed is justly due, orto become due, as the case may be. Code, section 1839. All the power which the clerk of the district court has to enter judgment by confession, is given by the section above cited; and without expressing any opinion, whether the power and authority of the district court in session are restricted by it, we are of opinion, that in order to enable the clerk of the district court so to enter judgment, the provisions of the statute must be strictly pursued. The statement in writing on which the judgment in tin’s instance is founded, does not set forth concisely, nor in any mode, the facts out of which the indebtedness arose ; nor does it state that the sum confessed for judgment, is justly due. It is not sufficient to state that the sum is due upon a promissory note executed, by the party. It must state [140] the manner in which the indebtedness arose, to secure the payment of which the note was given; and it must state that the amount is justly due, otherwise the clerk has no authority to enter the judgment. A doubt has been suggested to the minds of the court, whether it should be permitted to the defendant, after judgment has been entered in conformity to the confession, to object upon appeal, that the statement required to be made by him, is insufficient to warrant the entry of judgment by the clerk; and, saying nothing of its validity, as to creditors whom it might have been intended to defraud, whether it is not, as between the plaintiff and defendant, a judgment which the latter cannot question the authority of the clerk to enter, even though the statement does not conform to the requirements of the statute. It has been held by this court, that although the confes. sion of judgment is a waiver of formal errors, it does not prevent the defendant from objecting to errors of substance; as if the power of attorney authorizes the entering of judgment for a particular sum, and the judgment be actually entered for a larger sum. Battelle v. Bridgeman, Morris, 363. Ve think that upon authority, the defendant is also authorized to object to the defectiveness of the power, or warrant of attorney ; or, as in this instance, that the statement required by the statute to be filed in writing was insufficient. Gambia v. Howe, 8 Blackford, 133; Brown v. Little, 9 Ala., 416. In New York, the statute of 1818, required that the party confessing judgment, should specify the nature and consideration of the debt on which the judgment is entered-It was held in Lawless v. Hackett, 16 Johnson, 148, that a statement by the defendant, that “ the bondlwas given for divers goods, wares and merchandise, sold and delivered by the plaintiff to the defendant. And also, for money lent and advanced by the plaintiff to the defendant, at various times ” — was too general, and the judgment was set aside. The specification, it was held, should be so particular and precise as to apprize all persons interested, of the nature [141] and consideration of the debt. A statement as general as the common courts, in a declaration, was held not sufficient ; it ought to be as special and precise as a bill of particulars. In Chappel v. Chappel, 2 Kernan, 215, the question arose under a statute similar to our own, requiring the defendant to state conciseljq “ the facts out of which the debt arose, and that the sum confessed for judgment, is justly due.” The court says : “ The Code demands something more than an oath to the justice of the debt; it requires, what to a dishonest debtor is far more difficult and embarrassing — a statement of the facts out of which it arose. He could swear, perhaps, that he was justly indebted, because the bond, if executed for a fraudulent purpose, was, as between him and the obligee, conclusive, notwithstanding.” * * * “ The statute looks not to the evidence of the demand, but to the facts in which it originated; in other words, to the consideration which sustains the promise. The law requires this to be concisely set forth in the statement, which is to form a part of the record ; and in this way, only, does, the provision furnish any additional security to creditors, against a fraudulent combination of the parties to the judgment.” In the case last cited, the application was to the court to set aside the judgment, by a creditor of the defendant, who held a younger judgment. The court of appeals held that the supreme court rightfully exercised an admitted power, in setting aside the judgment by confession, for the reasons above given. Though the question as to the exercise of such a power, does 'not arise in this case, we see no objection to its exercise by the district court, in a case calling for it. But, as the question in this case, arises more properly, as to the power and authority conferred upon the clerk, by the writ, ten statement and confession of defendants, we think the defendant was entitled to raise that question on this appeal. Judgment reversed.