Halfhill v. Malick

KebwiN, J. The learned counsel for the appellant, both in their brief and upon oral argument, attack the Ohio judgment and the judgment of the court below and insist that the judgment appealed from should be reversed. They have favored us with very exhaustive and able argument to sustain their position, and the propositions in support of their several contentions have been examined with care, but we have been unable upon the whole record to bring ourselves to the conclusion that the judgment below should be reversed. The first and principal point made by appellant is that the Ohio judgment was not admissible in evidence. We have set out in the statement of facts the record resulting in the judgment of the Ohio court which is attacked. It is said that the power to confess judgment by warrant of attorney comes from the common law, and this is true except in so far as the old rule of the common law has been modified by statute and the decisions of the courts of last resort in this country. The statutes of Ohio were put in evidence on the trial in the court below, and we find therein some provisions respecting judgments by warrant of attorney. Secs. 5324, 5035, 5325, 5354, and 6355, Bates’ Ann. Ohio Stats. (5th ed.). Counsel for appellant cite the rule of the common law from Tidd’s Practice to the effect that a judgment could not be confessed upon a warrant of attorney executed more than a year and a day before, unless an affidavit was filed showing that the maker was alive and that some portion of -the debt was still due, and a stricter rule applied where the warrant was ten or twenty years old, and it is argued that some such showing was necessary to warrant the execution of the power of attorney in the instant case. — 209 — "Whatever the rule of the common law was respecting tbe life of a naked power of attorney, we are convinced that such a strict rule as is laid down in Tidd’s Practice, referred to by appellant’s counsel, does not apply where the power is coupled with an interest and supported by consideration, and necessary to effectuate the security to which it attaches. Hunt v. Rousmanier’s Adm'rs, 8 Wheat. 174; Walsh v. Whitcomb, 2 Esp. 565; 2 Kent, Comm. (1st ed.) 505-507; Evans v. Fearne, 16 Ala. 689; Hutchins v. Hebbard, 34 N. Y. 24; Wassell v. Reardon, 11 Ark. 705, 54 Am. Dec. 245. Moreover, the rule referred to does not go to the question of power but to the regularity of the execution of it. It is a rule of presumption, which like other presumptions may be rebutted. The record of the judgment is ample to rebut the presumption of payment, if any arose by lapse of time, and there is no pretense that the defendant was dead at the time of entry of the judgment. The cases cited by appellant on the question under consideration generally go to the question of the regularity of the exercise of the power under the warrant. Bryant v. Harding, 29 Mo. 347; Clark’s Ex’rs v. Hopkins, 7 Johns. 555; Wight v. Alden, 3 How. Pr. 213; Manufacturers’ & M. Bank v. St. John, 5 Hill (N. Y.) 497. In Alldritt v. First Nat. Bank, 22 Ill. App. 24, it was held that a judgment entered by confession upon a power of attorney which was more than a year and a day old would not be set aside for want of an affidavit showing that the defendant was alive and some part of the debt unpaid, unless some equitable grounds of relief were shown, citing Rising v. Brainard, 36 Ill. 79, and Stuhl v. Shipp, 44 Ill. 133. The rule has been held in this state, in cases of judgment by confession, that in the absence of equities in favor of the debtor a judgment will not be set aside for irregularities. Reiley v. Johnston, 22 Wis. 279; F. Mayer B. & S. Co. v. Falk, 89 Wis. 216, 61 N. W. 562. The Ohio statutes (2 Bates’ Ann. Stats, secs. 5324 and — 210 — 5325) provide for judgment by warrant of attorney, and require tbe attorney at tbe time of making tbe confession to. produce tbe warrant to tbe court, and tbat tbe original or a copy shall be filed with tbe clerk of tbe court. It is argued tbat the verification of tbe complaint is not sufficient because made by tbe attorney, and tbat it must be made by tbe party. We think tbe verification sufficient and in compliance with tbe Ohio statute (vol. 2, sec. 5109), which provides (subd. 3) tbat when tbe pleading to be verified is founded upon a written instrument for tbe payment of money and such 'instrument is in tbe possession of tbe agent or attorney tbe verification may be made by tbe agent or attorney. Appellant places some reliance upon sec. 2896 of our statutes respecting tbe entry of judgments upon warrant of attorney, but it will be seen tbat this section is different from tbe Ohio statute upon tbe same subject. For example, one point of difference is tbat under tbe Wisconsin statute tbe original warrant must be produced and made a part of tbe judgment, while tbe Ohio statute requires tbat tbe original or a copy of tbe warrant shall be filed with tbe clerk. 2 Bates’ Ann. Ohio Stats, sec. 5324. Tbe Wisconsin statute is in other respects different from tbe Ohio statute. In tbe instant case tbe petition alleges tbe execution of tbe notes and warrants and sets out copies in tbe petition; also sets out and alleges due assignment to plaintiff and indorse-ments on tbe notes. Tbe plaintiff was, under tbe strict power, tbe assignee of tbe notes, and tbe Ohio court, a court of general jurisdiction, so found. It is true, as argued, tbat tbe attorney in confessing judgment must keep strictly within tbe power conferred, but it must also be remembered tbat tbe power of attorney in this case contains a release of errors; besides, the record shows tbat tbe power was strictly followed. It must also be borne in mind tbat mere irregularities under a warrant with release of errors will not generally subject a judgment to collateral attack. Van Fleet, Collateral Attack, — 211 — p. 2; Knox Co. Bank v. Doty, 9 Ohio St. 505; Callen v. Ellison, 13 Ohio St. 446. It is argued that tbe warrant of attorney does not authorize judgment in favor of plaintiff because plaintiff is not an assignee witbin tbe record. Tbe record shows absolute in-dorsement to plaintiff, and besides tbe court finds that tbe notes were duly assigned to plaintiff. But it is said tbe court could not find facts not warranted from tbe power. This may be conceded, but tbe power authorizes judgment in favor of tbe payee “or assigns,” and tbe plaintiff was an as-signee under tbe strict terms of tbe power as well as under tbe proof and finding. It is further argued under this bead that the proof showed that plaintiff was not tbe real party in interest and therefore was not entitled to judgment. ■ We think this contention is not supported by tbe evidence or tbe law. • But even if it could be said that tbe plaintiff under tbe evidence was not tbe real party in interest, still tbe question cannot be raised upon collateral attack. Freeman, Judgments, § 557; Lantz v. Maffett, 102 Ind. 23, 26 N. E. 195. Nat. Exch. Bank v. Wiley, 195 U. S. 257, 25 Sup. Ct. 70, is strongly relied upon by counsel for appellant, but in that case tbe power of attorney authorized tbe confession of judgment in favor of tbe “bolder” of tbe note, and there was no indorsement on it showing that it bad ever been assigued or transferred by tbe original payee. Tbe note was payable to tbe National Exchange Bank or order, with warrant of attorney attached. It was held that tbe power, being to confess judgment in favor of tbe “bolder,” did not, in tbe absence of express terms, authorize tbe confession of judgment in favor of tbe original payee after it ceased to be tbe owner of tbe note.' So it will be seen that tbe case is not controlling here. That tbe power of attorney authorized tbe entry of judgment in favor of tbe plaintiff in tbe instant case is fully warranted by the Ohio decisions. Spence v. Emerine, 46 Ohio St. 433, 440, 21 N. E. 866; Cushman v. Welsh, 19 Ohio St. 536; — 212 — Watson v. Paine, 25 Ohio St. 340; Clements v. Hull, 35 Ohio St. 141. It is further urged that the Ohio court had no jurisdiction of the action because brought in the wrong county; that the action must be brought in the county where there is property or debts owing to the nonresident, or where the defendant is found, or where the cause of action arose, and that none of these conditions attached to the county of the Ohio judgment. We think, however, that the Ohio statute meets the objection raised. Sec. 5027, 2 Bates’ Ann. Ohio Stats., provides that the action may be brought where the defendant is found. The defendant though a nonresident had a right to appear by attorney, and it clearly appears from the record that defendant did appear by attorney “by virtue of warrants of attorney for that purpose duly executed by the said John P. Malicie and now produced to the court.” That the judgment was seventy-four cents too large. If it was, it is ruled by the maxim de minimis non curat lex. It is further contended that the record does not show any judgment in fact, or that any judgment was ever entered, because the record offered and received in evidence does not show that it was signed by the judge or clerk of the court and there is nothing to show that it was ever entered in or constituted a part of any judgment book. And it is said, quoting from our statute (sec. 2896, Stats. 1898), that “the judgment shall be signed by the court or a judge and shall be thereupon entered and docketed by the clerk and enforced in the same manner as judgments in other cases.” But the entry of judgments in Ohio is controlled by the Ohio statutes and not by the Wisconsin statutes. The Ohio statutes respecting the subject are secs. 5310, 1245, 5331, 4962, 4957, 5332, 5333, and 5334, Bates’ Ann. Ohio Stats. (5th ed.). These statutes show that the record was admissible in evidence though not signed by the judge or clerk of the court. Sec. 1245 provides that the clerk shall enter ah judgments, — 213 — and sec. 5331 provides that they shall he entered on the journal of the court and specify the relief granted; sec. 4962 provides that the clerk shall keep the journal; sec. 4957 provides that the hooks shall he kept hy the clerk; sec. 5333 provides that the clerk shall make up the record in each cause in the vacation next after the term at which the same was determined, and the presiding judge of the court shall at the next term thereafter subscribe the same. The original papers and transcripts from the journal entries are admissible in evidence as the record when they have not been carried into the record book, under the Ohio decisions cited in the statute. Morgan v. Burnett, 18 Ohio, 535. And the signature of the presiding judge is not essential to the validity of the record. Osburn v. State, 7 Ohio (Part I) 212. The record of the Ohio judgment admitted in evidence was duly attested by the clerk and the seal of the court annexed, together with a certificate of the judge as required by see. 905, 1 U. S. Comp. Stats. 1901, and was therefore admissible in evidence. Ordway v. Conroe, 4 Wis. 45; Hackett v. Bonnell, 16 Wis. 471. The foregoing authorities show that the record might be attested and certified either in accordance with the federal statutes above referred to or according to the state statutes. In this connection we call attention to the case of In re Box’s Will, 127 Wis. 264, 106 N. W. 1063, in which it was held that an Illinois record was not admissible in evidence because not certified in the manner provided by the statutes of this state, although it w;ould seem from the statement of facts that the record was authenticated in accordance with the federal statute heretofore cited. Anything said in the case last named in conflict with the rule laid down as to authentication of records from other states in Ordway v. Conroe and Hackett v. Bonnell, supra, must be regarded overruled. Other questions discussed by appellant respecting the statutes of limitation barring the notes, invalidity of the $167.18 — 214 — note, and substantial excessiveness of the judgment aside from the seventy-four cents before referred to, were found by the court below, upon sufficient evidence, in favor of plaintiff, and the findings upon these questions cannot be disturbed even if open to investigation at all. How far the matters determined and adjudicated by the Ohio judgment could be questioned and re-litigated in the court below we need not discuss. It may well be that such matters could not be reexamined in the suit upon the judgment, the judgment being-good upon its face and no fraud having been shown in the procuring of it. But the court below tried all questions raised against the validity of the judgment as well as against the justice of it, and all issues were resolved against the defendant, and we find no error in the record of which he can complain. By the Oourt. — The judgment below is affirmed.