Trenery v. Swan

Granger, J. I. It seems to ns unnecessary to consider any of the many objections made to the validity of the legalizing act. That the statement of indebtedness was made and delivered to Close, to be the ■basis of a judgment on confession, is not questioned. It is a most solemn admission of an indebtedness, and the only reason that there was not a judgment before the commencement of this suit is because of a mistake [621] or omission of the clerk of the court. It is conceded, in the record, that the debt has nort been paid. Plaintiff now asks, after his admission that he has not paid the debt, that his statement of indebtedness be declared void. There is not an equitable consideration to support such a claim, and the prayer of the petition was rightly denied. There is a claim that the court could not make a nunc pro time order in such a case. We do not understand such an order to have been made. The order for judgment does not appear to be retroactive in its effect, but simply for a present judgment 1 based on the statement of indebtedness. Such a judgment may well be sustained. If the statement of indebtedness be treated as not having been filed or placed of record, but merely as having been made and delivered to Close, we have an instrument in writing creating a legal obligation to pay, on which a cause of action may be maintained. Every element of a legal obligation is contained in the statement, with the particular facts giving rise to the obligation. We think the District Court took this view of the record, for its judgment does not purport to be one of confession, but one upon an issue formed by the pleadings showing an obligation for payment. II. The claim of appellant, under his plea of the statute of limitations, is that the action is barred in 2 five years, as if brought on the original indebtedness. It is said that the statement for judgment is “only an admission of the indebtedness of the original cause of action, and not a new cause of action.” The very object of the statement was to create or make a written obligation on which a judgment could be entered. We do not see how one could more conclusively create a cause of action than by such a statement, made with a view that it should be the basis of a judgment. Such an act is more than a [622] mere admission oí indebtedness. It is an obligation for payment in writing, giving rise to a canse of action, thereon. The judgment of the District Court is affirmed.