Hazel v. Jacobs

— 460 — The opinion of the court was delivered by Reed, J. This writ brings up a judgment entered upon a finding of the trial judge sitting without a jury. The action was brought in the Cumberland County Circuit Court and resulted in a judgment for the plaintiff. The action below was brought to recover the amount of a judgment entered upon a promissory note before a justice of the peace in the State of Delaware, which judgment was duly docketed in the Superior Court of said state at Dover, in the county of Kent. The note upon which the judgment was entered was given to one Prank Moncur, and by him assigned to William B. Hazel, who caused the judgment below to be thereafter entered. The judgment was entered by virtue of a warrant of attorney, and the folloAving is a copy of the note and the warrant: “I, George W. Jacobs, promise and oblige myself, my heirs, executors or administrators, to pay Prank Moncur, his executors, administrators, or assigns, the sum of seventy dollars ($70.00) lawful money of the State of Delaware with lawful interest, for value received, on or before the first day of November, a. D. 1889. “And further, I do hereby authorize and empower any justice of the peace within the State of Delaware or elsewhere to enter judgment on the above obligation without process, against me, my heirs, executors or administrators, at the suit of the said Prank Moncur, his executors, administrators or assigns, at any time after the date hereof, with stay of execution till the first day of November, a. d. 1889, and I do hereby release all and all manner of error or errors in any such judgment and in the execution to be issued thereon. “In witness whereof, I have hereunto set my hand and seal this first day of May, A. d. one thousand eight hundred and eighty-nine. “George W. Jacobs. [Seal.] “Signed, sealed and delivered in the presence of “George N. Dofnellt.” — 461 — The entry of judgment is in the following form: “Jan. 31, 1901. 459. William B. Hazel, Assignee of Frank Moncur, George W. Jacobs. “Action of debt on specialty with warrant of attorney to enter judgment against this defendant without process and release of error for $70.00, int. from Nov. 1, 1889. “And now, to wit, this 31st day of January, a. d. 1901, the note with warrant of attorney is received and filed and thereupon judgment is hereby given in favor of said plaintiff, and against George W. Jacobs, defendant, for seventy dollars, with interest, from November 1, A. D. 1889, and fifty cents costs. “Jorra B. Hutton, J. P." To the declaration upon this judgment the defendant pleaded payment of the judgment. He also pleaded that he was never served with any process in the state in which the said judgment was obtained, and that he did not appear to the said suit in person or by attorney, and that he was not resident nor present within the jurisdiction of the said court in which said judgment was rendered, and that John B. Hutton, justice of the peace, and one J. H. Hughes, attorney-at-law, appeared for the defendant in the said suit and entered judgment against the defendant, but that neither was authorized by the defendant so to do. Upon the trial of the present action an exemplified copy of the Delaware judgment was put in evidence, also a copy of the statute of Delaware permitting the entry of such judgment by a justice of the peace upon warrant of attorney. It was also proved that Hazel was the holder by assignment of the note in question. Eespecting the plea of payment, the defendant testified that the note was given in payment for a horse purchased by him from the payee, Moncur; that in exchange for the horse so purchased Moncur gave him another horse; that defendant returned the second animal to Moncur in satisfaction of the note, and that the horse was so accepted by Moncur. The — 462 — defendant says that he had the last horse two or three weeks, maybe a little longer. It appears that soon after Jacobs moved from his then residence. The promissory note was purchased by Hazel, the present plaintiff, from Moncur, at the request of Jacobs, before the judgment was entered, and after Jacobs had moved away from his then former residence. The note, as already appears, was made on May 1st, 1889, and the judgment was entered January 31st, 1901, so it conclusively appears that the transaction between Mr. Jacobs and Moncur, upon which the former relies to prove payment, occurred soon after the note was delivered, and long before the judgment was entered. The defence of payment, therefore, by a transaction occurring before the entry of the judgment, is unavailable in an action upon the judgment. National Bank v. Wallis, 30 Vroom 46. Indeed, this well-settled rule where a judgment is regularly obtained, is not assailed by the counsel for the plaintiff in error. ' His ease rests upon the proposition that the Delaware judgment was not so entered as to entitle it to full faith and credit in the courts in this state. The defect alleged is that there was an absence of jurisdiction over the defendant, Jacobs, in that there was no-legal service of process upon him, and no appearances by him or by any attorney authorized to so appear. This raises the question whether a judgment entered without process or appearance, but entered in conformity with the authority given by a warrant of attorney executed by the defendant, confers jurisdiction upon a court to enter a judgment which is unassailable collaterally in both •domestic and foreign jurisdictions. It is not denied that the entry of the judgment by the justice of the peace in the State of Delaware was upon its face regular, and in conformity with the statutes of that state. It is not denied that the authority given by the warrant of attorney conferred upon the justice of the peace of the State of Delaware and elsewhere power to enter judgment upon the note without process. It cannot be denied that a party can waive his right to have a suit begun against him by process. Crosby v. Washburn, 37 Vroom 494. — 463 — Nol- can it be denied that the warrant oi attorney authorizing another to appear and enter judgment without process is a waiver of such right. In the words of Chief Justice Kuger, in delivering the opinion in the case of Teel v. Yost, 128 N. Y. 387: “That a power so conferred is the equivalent of process is entirely settled. In all cases where such an authority exists, it is simply a question as to what the principal has authorized to be done in his name, anti does not involve any of the questions arising in an action in invilurn against resident or non-resident defendants.”' The courts of this state have recognized the conclusive character of foreign judgments entered without process, but upon the authorization of a warrant of attorney to appear for the defendant. Hendrickson v. Fries, 16 Vroom 555; Schelmerdine v. Lippincott, 40 Id. 82. Both of these cases involved actions upon judgments so entered in the State of Pennsylvania. The same rule prevails in Massachusetts. Henry v. Estes, 127 Mass. 474; Van Norman v. Gordon, 172 Id. 576. So in the Federal Supreme Court it is regarded as settled that if the authority to enter a judgment is strictly pursued, the judgment is entitled to credit everywhere. In National Exchange Bank of Tiffin v. Wiley, 195 U. S. 257, it was held that where a warrant authorized the entry of judgment in favor of the holder of a promissory note, it could be shown in an action upon the judgment elsewhere that appearance was by one not the holder, and in Grover & Baker Co. v. Radcliffe, 137 Id. 287, the judgment was held irregular because entered without the appearance of an attorney, when the power conferred was only that any attorney could enter judgment. Both of these cases assumed as a settled doctrine that where the authority conferred was strictly pursued, the judgment entered was entitled to full faith and credit in foreign jurisdictions. The judgment in this case was entered by a justice of the peace, and the power was given to the justice of the peace to execute this judicial act. The want of process or of other appearance was waived. — 464 — The judgment below, therefore, in favor of the plaintiff for the amount of the judgment, should be affirmed. For affirmance — The Chancellor, Chief Justice, Garrison, Swayze, Reed, Trenchard, Parker, Bergen, Voorhees, Minturn, Bogert, Vredenburgh, Vroom, Gray, Dill, Congdon, JJ. 16. For reversal — None.