Bernard & Co. v. Douglas & Watson

Baldwik, J. It is insisted by tbe appellants, that tbe judgment confessed by Plummer was not made in compliance with tbe requisites of tbe statute, regulating tbe entry of judgments by confession, and is therefore void, and tbe court erred in refusing to sustain the motion to set tbe same aside. Two objections are made to tbe validity of this judgment by confession: 1st. That tbe statement of facts filed by Plummer at tbe time of tbe confession does not sufficiently show out of what tbe indebtedness arose. 2d. That it does not appear that tbe amount for which tbe judgment was confessed was justly due, or to become due. Under tbe provisions of chapter 107 of tbe Code, a judgment by confession may be entered by tbe clerk of tbe District Court in vacation, but before tbe judgment can be thus entered, a statement in writing must be made and signed by the defendant and verified by bis oath to' tbe following effect, to-wit: “If for money due or to become due, it must state concisely tbe facts out of which tbe indebtedness arose, and that tbe sum confessed therefor is justly due, or to become due as tbe case may be.” Tbe statement made by Plummer in this case, setting forth tbe facts out of which tbe indebtedness arose, is as follows, to-wit: “ That on tbe 25th day of February, 1859, said John W. W. Plummer executed and delivered to said plaintiffs, (Douglas & Watson) bis certain promissory note, for tbe sum of twelve hundredand fifty-eight dollars and fifty cents, payable six months after date, with ten per cent interest after maturity, which said note is hereunto attached, and that said note was'given for tbe balance due said plaintiff on settlement. (Signed,) John W. Plummbb. This statement was properly sworn to, and accompanied by [372] tbe usual authority to the clerk to enter up the judgment thus confessed. In the case of Lawless v. Sachet, 16 John. 149, under a statute similar to the one under which this confession was made, it was held that the specification ought to be so particular and precise as to inform all persons interested of the nature and consideration of the debt. A statement as general as the common counts in a declaration is not sufficient. It ought to be as special and precise as a bill of particulars. In the case of Dunham v. Waterman, 3 Smith N. Y. R. 9, it was held that a mere statement that the note was given upon a settlement of accounts conveys no information of any value. Something at least should be stated as to the nature of the account and the time when it accrued. In Chappel v. Chappel, 2 Ker. 215, it was held that “the statute looks not to the evidence of the demand, but to the facts in which it originated. The law requires these to be concisely set forth in the statement which is to form 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 of Edgar v. Greer, 7 Iowa, 136, it was held that the statement in writing upon which the judgment is to be entered by the clerk, must state the manner in which the.indebtedness arose to secure the payment of which the note was executed. The object of this provision of the Code is to advise other creditors of the nature and character of the indebtedness of the party confessing, so that they may know that such confession was not a combination of the parties to create liens and incumber the property of the defendants, to defraud and to delay the collection of debts. Can any creditor be advised from this judgment of the character of the indebtedness of Plummer to these defendants ? We think not. It merely states that it was for a balance due. Neither does the statement show that the amount for which the judgment was confessed was “justly due.” • This was held by this court in the case of Sdgar v. Greer, to be necessary, and we think that ruling correct. The clerk of the District [373] Court is a ministerial officer, and has no power to render judgment unless expressly authorized to do so by the Statute. lie has power to enter up judgment in vacation only upon the statement being made as is required by law; and any judgment entered by him without authority of law has no effect, especially as to the rights of third parties. The statement of Plummer, in this confession, not being made in conformity with the provisions of the law, we regard the judgment thereon as illegal, and that the rights of third parties should not be affected thereby. The second question then presented for (Consideration in this case, is whether a subsequent judgment creditor can take advantage of this omission, and have the same set aside upon motion; or whether he must resort to a court of chancery for that purpose. Upon this point we could not but have some hesitation in holding as we do, were we unsupported by authority. The application is made in form of a petition to the court, and by service of notice upon the defendants. In the case of Chapel v. Chapel, 2 Ker. N. Y. R. 222, above referred to, upon this subject the court says: “ Keeping in view the intent of the statute to prevent fraudulent practices by debtors to shield their property, by creating fictitious liens upon it, by means of judgments confessed to confidential friends, it is clear that the more summarily the fraud can be reached by an adverse claimant, the less will be the temptation to resort to this as a means of fraud. The court has control over its own judgment, and for cause shown may amend or set them aside; and when there is a judgment, which the law deems fraudulent, in the way of a valid judgment, there is no objection in allowing the party interested in enforcing the subsequent judgment to come in by motion and remove the obstacles in his way.” In the case of Edgar v. Greer, 7 Iowa 136, the court in their opinion, say upon this subject: “though the question as to the exercise of his power, does not arise in this case, we see no objection to its exercise by the District Court in a case calling for it. In the case of Dunham v. Waterman, 3 Smith’s N. Y. Rep. 15, the court [374] held “that if the judgment is defective for the reason assigned, there is no doubt of the right of plaintiff to institute suit for the purpose of setting it aside. So far as the judgment itself is concerned the object might have been obtained by a mere motion.” The judgment by confession in this case being without authority of law, and illegal and void, and remaining upon the records of the court unsatisfied, and the rights of younger judgment creditors being prejudiced thereby, and the defendants being duly advised by notice and petition of the character of the application to set the same aside, we think that the court should have made an order setting it aside, as asked in the plaintiffs’ motion. The ruling of the District Court is reversed and the cause remanded.