First Nat. Bank v. Cunningham

• Decision Date: 12 December 1891
• Citation: 48 F. 510
• Parties: FIRST NAT. BANK OF DANVILLE v. CUNNINGHAM.
• Court: United States Circuit Court, District of Kentucky

48 F. 510

FIRST NAT. BANK OF DANVILLE v. CUNNINGHAM.

United States Circuit Court, D. Kentucky.

December 12, 1891

A. C Rucker and Gibson, Marshall & Lochre, for plaintiff.

Wm Lindsay and Humphrey & Davie, for defendant.

JACKSON J.

The plaintiff's motion to file the amended petition tendered is allowed; and the second paragraph of the defendant's answer will be treated (as it was discussed) as applicable to both the original and amended petition in the consideration of plaintiff's demurrer thereto.

The attention of counsel is called to the fact that the demurrer as filed, states that said second paragraph of the answer does not constitute a defense to the matters set up in the first paragraph of the petition. The demurrer was discussed as relating to the second paragraph of the petition. If the demurrer, as expressed on its fact, is intended to question the sufficiency of the answer to the first count or paragraph of the petition, it is clearly not well taken. If intended to question the sufficiency of said paragraph of the answer to the second count of the petition, as assumed at the hearing of the demurrer, plaintiff may amend the same. The court will deal with the question on the assumption that this amendment will be made.

The second count of the petition sets out that on November 28, 1890, the plaintiff instituted an action against the defendant in the circuit court of the eleventh judicial district of the state of Illinois, in and for the county of McLean, in said state, to recover damages sustained by it by reason of the failure of defendant to pay certain sums of money alleged to be due it from defendant, on certain written obligations, viz., promissory notes executed by him to plaintiff; that said circuit court of McLean county, Ill., had jurisdiction of the subject-matter of said action, and the defendant, on the 28th of November, 1890, appeared to said action by his counsel thereunto authorized by defendant to so appear for him, and filed his cognovit therein, wherein he confessed that plaintiff had sustained the damages claimed by it by reason of the breach of his promises to plaintiff as claimed in said action, and thereupon, on said day, said court caused to be entered of record in said action a judgment in favor of plaintiff against the defendant for the sum of $36,301.20, the amount of damages so confessed, and costs expended, and that execution issue therefor. It is then alleged that said judgment is still of record in said court, is in full force, and wholly unsatisfied. A complete transcript of the record in said action, certified and attested as required by law, is filed as an exhibit to, and part of, the petition, which seeks to recover against defendant the amount of said judgment, with interest thereon. The amended petition states that after the rendition of the aforesaid judgment against him by said McLean circuit court of Illinois, at its November term, 1890, the defendant, Cunningham, on the 19th day of December, (being one of the days of the November term, 1890, of said court,) appeared in said court by counsel expressly chosen and authorized by him so to do, and moved said court to vacate and set aside the judgment rendered against him as aforesaid; that as a part of said motion he assigned, as reasons for setting aside and vacating said judgment, the alleged facts that at the time of the entry of said judgment, and long prior thereto, the notes upon which said judgment was rendered had been fully paid; and, second, that a large portion, to-wit, $25,000, of said notes had been paid, and said judgment was entered for too much; that at the same time, to support his said motion, the defendant filed in said action his own affidavit, wherein he recited certain facts showing, or tending to show, that the notes sued on in said action, and on which judgment had been rendered, had been fully paid several years before said action was instituted; that said McLean circuit court, by the statutory laws of Illinois, had, at the time said motion was made by defendant, full control over said judgment, with power to vacate and set it aside, and it was its duty to set it aside on defendant's said motion, if the reasons assigned therefor had appeared to said court to be well founded, and supported by sufficient evidence; and, if said judgment had been set aside and vacated, the defendant would have had the lawful right to defend the said action the same as if no judgment had ever been entered therein; but that defendant, without insisting on his said motion, and without asking a hearing or decision of the same, again appeared in said court by his counsel, on the 25th day of March, 1891, and, after obtaining leave to do so, withdrew his said motion to vacate and set aside said judgment; and the said action which had remained pending on the docket of said court on account of defendant's said motion was thereupon stricken from the docket. A complete transcript of the proceedings had in said action, subsequent to the rendition of the said judgment, upon said motion to vacate, and the withdrawal thereof, is filed as a part of said amended petition.

It appears from the transcript of the record filed with and as a part of the original petition that plaintiff's action and judgment in the circuit court of McLean county, Ill., was based upon certain notes executed by defendant to plaintiff in 1882, 1883, and 1885, to each of which was attached a warrant of attorney attached to four of the notes, maturing in 1886, was as follows:

'And to secure the payment of said amount, we, or either of us, hereby authorize, irrevocably, any attorney of any court of record to appear for us in such court in term-time or vacation, at any time hereafter, and confess a judgment without process in favor of the holder of this note, for such amount as may appear to be unpaid thereon, together with costs and five per cent. of the principal amount as attorney's fees, and to waive and release all errors which may intervene in such proceeding, and consent to immediate execution upon such judgment.'

To the other two notes, maturing in 1882 and 1884, the warrant of attorney was as follows:

'Now, therefore, in consideration of the premises, we do make, constitute, and appoint E. R. E. Kimbrough, or any attorney of any court of record, to be our true and lawful attorney, irrevocably, for us, and in our name, place, and stead to appear in any court of record, in term-time or vacation, or before any justice of the peace in any of the states or territories of the United States, at any time after said note becomes due, to waive the service of process, and confess judgment in favor of said First National Bank of Danville, Ill., its order or assignee, upon said note, for the above sum, and interest thereon to the day of the entry of said judgment, and also to file a cognovit for the amount thereof, with an agreement therein that no writ of error or appeal shall be prosecuted upon the judgment entered by virtue thereof,' etc.

Said transcript shows that plaintiff's action was commenced and its declaration filed November 28, 1890; that its attorney, J. B. Mann, made affidavit to the signature of James A. Cunningham to the several notes sued on and powers of attorney thereto attached; that each of said several notes was unpaid; and that said Cunningham was still living. Following this affidavit, and said notes and powers of attorney, it is recited that defendant, by his attorney, came and filed in said cause his certain cognovit, November 28, 1890, which is in the words and figures following, to-wit:

'And now comes the said defendant, by E. R. E. Kimbrough, his attorney, and says that he cannot deny the said several allegations in said declaration, nor that said plaintiff has sustained damages by reason of the breach of the said several promises in said declaration mentioned to the amount of thirty-six thousand three hundred and one dollars and twenty cents, and therefore he confesses judgment in behalf of said defendant, and in favor of said plaintiff, for the said sum and costs of suit herein.

'E. R. E. KIMBROUGH, Atty.'

Then follows the judgment entry in the cause, which recited--

'That plaintiff files its declaration, and thereupon comes E. R. E. Kimbrough, an attorney of this court, and by virtue of a warrant of attorney for that purpose executed, and the execution thereof by said defendant, James A. Cunningham, being duly proven by the affidavit of J. B. Mann, on file herein, waives the issuing and service of process in this cause, and confesses that said plaintiff has sustained damages, by reason of the non-performance of certain promises in its declaration, in the sum of $36,301.20, and consents that judgment may be rendered against said defendant therefor. It is therefore adjudged by the court that said plaintiff, the First National Bank of Danville, Ill., * * * recover of and from said James A. Cunningham, defendant, the sum of $36,301.20, the amount of damages so confessed, and also the costs in this behalf expended, and that execution issue therefor.'

Execution for both damages and costs were issued the same day, and were returned by the sheriff, November 19, 1890, 'No property found.'

To the present suit upon said judgment thus obtained the defendant by way of defense, sets up in the second paragraph of his answer the payment and discharge of each and all the notes on which said judgment was founded prior to the rendition thereof, under and by virtue of an agreement of accord and satisfaction made and entered into between himself and the plaintiff in 1886, and which was fully completed on his part, and accepted on the part of plaintiff. The facts set forth in the answer as constituting the accord and satisfaction of the...