Hull, Robinson & Co. v. Garner, Neville & Co.

Smith, C. J., delivered the opinion of the court. The defendants in error brought suit, to the March Term, 1855, of the Circuit Court of Kemper county, against the plaintiffs in error, upon three promissory notes, alleged to have been made by three parties in their firm name of Hull, Robinson & Co. A summons was issued and executed, personally, upon each of them. At the return term, the defendants in error filed in court, an agreement in writing, signed “ Hull, Robinson & Co.,” by which they waived all exception to the sufficiency of the service of the summons, and consented that a judgment by confession should be entered against them upon the notes sued on, with release of errors; execution to be stayed until the first of May following. No defence was made to the suit; and the defendants in error having proved “the execution of the agreement by the defendants” below, a judgment by confession, in conformity with the terms of the agreement, was entered against them. To revise the judgment. thus rendered, this writ of error is prosecuted. A judgment on confession is equivalent to a release of errors. Hutch. Dig. 877, § 59. The question to be determined, therefore, is not whether the judgment is simply erroneous, but whether it is absolutely void. It is evident that the character of the agreement for a confession of the judgment, must determine this question. If the agreement was either valid as a power of attorney to confess judgment, [150] or sufficient as a cognovit actionem, it is clear that the judgment was not void. There is no pretence for saying that the agreement ought to be regarded as a warrant or power of attorney, by which the defendants in error or any one else, was authorized to confess- judgment upon the notes in suit. The agreement under consideration was executed in the name of the firm, and not by the persons constituting the co-partnership. And hence, it is insisted that the agreement was invalid as to the partners who did not join in the execution; and as a necessary consequence, that the judgment was void. It is the settled law, that one partner cannot bind another without his assent, by bond or warrant to confess a judgment. Nor can one partner make a voluntary confession of judgment in the name of his partner. But the application of these principles to the case before us, will not avail the plaintiffs in error. The record shows that the agreement was proved to have been executed “by the defendants,” that is, by Hull, Robinson and Gully, the partners in the firm, and whose co-partnership name Avas subscribed to the agreement. It is true that it does not appear by which of the partners the name of the firm was affixed to the agreement. This was wholly unimportant. The fact material to be established was, that the instrument Avas executed by all the members of the firm, or which would amount to the same thing, that they were present and assented to its execution. This is the fair, in fact, the only construction which can be put upon the statement in the record. We must, therefore, consider the agreement, although executed in the firm name, as the act of each of the partners, and, as such, binding upon them individually. The court had jurisdiction of the subject-matter of the writ. The parties were before it by its process. From an entry in the record, the presumption exists that they were present, in person, when the judgment was rendered. And as they interposed no objection, we may infer that it was done with their assent. Under these circumstances, we think the agreement may well be regarded [151] as equivalent to a cognovit actionem ; and consequently, that the judgment was neither erroneous nor void. Judgment affirmed.