Odell v. Reynolds

Decision Date28 October 1895
Docket Number264.
Citation70 F. 656
PartiesODELL v. REYNOLDS et al.
CourtU.S. Court of Appeals — Sixth Circuit

This action was brought by the plaintiff in error, James A. Odell against Frank Raynolds and his guardian, upon a judgment rendered by the superior court of Cook county, Ill., on the 18th day of April, 1892, in favor of this plaintiff and against the said Frank Reynolds, for the sum of $25,000, upon 12 promissory notes, aggregating in amount $25,000, and bearing date the 11th day of April, 1892, each of which was accompanied by a warrant of attorney to confess judgment thereon. Nine of these notes were for the sum of $2,000 each and three were for the sum of $2,333.33 each. Four of the notes were payable to the order of C. H. Odell, four to the order of J. A. Odell, and four to the order of L. J. Odell and were all indorsed to James H.

Odell, the present plaintiff. The notes and the warrants of attorney embodied therein were all in the same form, except as they varied in the amounts, time fixed for payment, and the person to whose order they were payable, respectively. A copy of one of them is here given: '$2,000.00

Chicago, Ill., April 11th, 1892.

'On or before the 11th day of May, 1892, the subscriber, whose post office is Cincinnati, county of Hamilton, state of Ohio, promise to pay to the order of C. H. Odell, two thousand dollars. Payable at . . ., for value received, with 6 per cent. interest per annum from date. Payable annually; with exchange, on New York or Chicago, and expense of collection. If interest is not paid annually, to become principal, and draw same rate of interest herein stated. And I hereby irrevocably make any attorney at law my attorney for me and in my name to appear in any court of record in the United States or territories, in or out of term, at any time after date hereof, to waive service of process, to confess a judgment on this note in favor of the payee or holder hereof, for such sum as shall at such time appear to be unpaid hereon, and for costs, including ten dollars, if amount unpaid is $100 or less (or ten per cent, if amount is over $100) for attorney's fees; to agree that no writ of error or appeal shall be prosecuted on such judgment, nor any bill in equity exhibited to interfere therewith; to release all errors in the entering of such judgment or issuing the execution thereon, and to consent to the immediate issuing of such execution.

'Resides . . ., miles . . . of P.O.

Frank Reynolds. (Seal.)

'Witness: . . .

'No. . . . '

Indorsements: 'Pay to the order of James H. Odell, C. H. Odell. The Stone Lake Ice Co., Frank Reynolds, Prest.'

On the 18th day of April, 1892, the present plaintiff, by Monroe & McShane, his attorneys, filed in the office of the clerk of the superior court of Cook county his declaration upon all of the above notes, counting upon each separately, and also a cognovit signed by Edward Hagemann, Jr., as defendant's attorney, and an affidavit of J. A. Odell, in proof of the signatures to the notes and powers of attorney. The cognovit and affidavit were in the form following: 'Frank Reynolds ads. James H. Reynolds. Cognovit. April Term, A.D. 1892.

'And the said Frank Reynolds, defendant in the above-entitled suit, by Edward Hagemann, his attorney, comes and defends the wrong and injury, when, etc., and waives service of process, and says that he cannot deny the action of the said plaintiff, nor but that he, the said defendant, did undertake and promise, in manner and form as the said plaintiff has above complained against him, nor but that the said plaintiff has sustained damages on occasion of the nonperformance of the several promises and undertakings in the said declaration mentioned, including the sum of twenty-five hundred dollars for reasonable attorney's fees for entering up this judgment, over and above the other costs and charges by him about the suit in this behalf expended, making the total of such indebtedness, principal and attorney's fees, the amount of twenty-five thousand dollars; and the said defendant further agrees that no writ of error or appeal shall be prosecuted on the judgment entered by virtue hereof, nor any bill in equity filed to interfere in any manner with the operation of said judgment, and that he hereby releases all errors that may intervene in entering up the same, or issuing the execution thereon, and consents to immediate execution upon such judgment.

'Edward Hagemann, Jr., Defendant's Attorney.'

'State of Illinois, County of Cook-- ss.: J. A. Odell, being duly sworn, deposes and says that he is acquainted with the handwriting of Frank Reynolds, the maker of the 12 annexed notes and powers of attorney; and deponent further says that the signatures to the said notes and powers of attorneys is the genuine signatures of the said Frank Reynolds, and that affiant saw him sign said notes.

J. A. Odell.

'Subscribed and sworn to before me, this 18th day of April, A.D. 1892.

'(Seal.)

James C. McShane, Notary Public in and for Said County.' And on the same day, it being one of the days of the April Term of that court, the following judgment was rendered:

'Confession, Assumpsit.
'James H. Odell vs. Frank Reynolds. 139,389.
'And now, on this day, comes the plaintiff to this suit, by Monroe & McShane, his attorneys, and files herein his certain declaration in a plea of trespass on the case upon promises. And thereupon also comes the said defendant, by Edward Hagemann, Jr., his attorney in fact, and files herein his warrant of attorney, the execution of which being duly proven, and also his cognovit, confessing the action of the plaintiff against him, the said defendant, and that the plaintiff has sustained damages herein by reason of the premises against him, the said defendant, to the sum of twenty-five thousand dollars. On motion of plaintiff, leave is given him by the court to enter up a judgment herein for the amount due on the note filed in said cause, together with attorney's fees, as provided in said warrant of attorney. Therefore it is considered by the court that the plaintiff do have and recover of and from the defendant his said damages of twenty-five thousand dollars, in form as aforesaid by the said defendant confessed, together with his costs and charges in his behalf expended, and have execution therefor.'

After the expiration of that term, and on the 26th of February, 1893, in the February term of that court, the following proceedings were had therein, and entered of record:

'James H. Odell vs. Frank Reynolds. No. 139,389.
'It is hereby ordered, adjudged, and decreed that the judgment record in the above-entitled cause be corrected and amended nunc pro tunc as of the 18th day of April, A.D. 1892, as follows: Strike out the words, 'And thereupon also comes the said defendant, by Edward Hagemann, Jr., his attorney in fact, and files herein his warrant of attorney,' and insert in lieu thereof the following words: 'And thereupon comes the said defendant, by Edward Hagemann, Jr., his attorney at law of this court, who appeared as attorney in fact under the warrants of attorney filed in this case.' And strike out the words, 'For the amount due on the note filed in said cause, together with attorney's fees, as provided in said warrant of attorney,' and insert in lieu thereof the following: 'For the amount due on the notes filed in said cause, together with attorney's fees, as provided in said warrants of attorney."

The judgment remaining unsatisfied, the plaintiff brought this action in the circuit court of the United States for the Southern district of Ohio, counting upon the said judgment. Loretta Reynolds, as guardian of said Frank Reynolds answered that Frank Reynolds was adjudged to be insane by the probate court of Hamilton county, Ohio, on the 26th day of October, 1892, upon a judgment of that court rendered on the 12th day of May, 1892, whereby he was adjudged to be a lunatic; and she set up several defenses,-- that the plaintiff was not the real party in interest; that the said superior court of Cook county never obtained jurisdiction of the person of Frank Reynolds, and had no power or authority to render the judgment; that said Frank Reynolds, at the time of the execution of the notes and powers of attorney, was insane and incapable of entering into any contract or performing any valid act, and was insane at the time of the filing of the petition and recovery of the judgment in the superior court of Cook county; and that this was known to the plaintiff in that suit when he sought and obtained the judgment; and that the said notes were not, nor were any of them, due at the date of the said judgment. The answer also denied each and every allegation in the petition in the present suit. The deposition of Edward Hagemann, Jr., was taken by the plaintiff, in which he testified that, at the time when the judgment was rendered in the superior court of Cook county, he was an attorney at law living in Chicago, and had been admitted to practice in Illinois in the summer of 1891. Upon the trial of the case in the court below, the plaintiff offered in evidence a transcript of the proceedings had in the superior court of Cook county, including the judgment and the order made on the 26th day of February, 1893, for the correction and amendment thereof. Defendants objected, first, to the last-mentioned order, and moved to have it stricken out. The objection was sustained, and the motion granted, to which counsel for plaintiff excepted. Whereupon counsel for defendants further objected to the record of the judgment in the case. The objection was sustained, and counsel for the plaintiff excepted. Thereupon counsel for the plaintiff offered the deposition of Hagemann to prove that he was an...

To continue reading

Request your trial
13 cases
  • Application of Beaver Dam Ditch Co. Crowell v. City of Cheyenne, 2044
    • United States
    • United States State Supreme Court of Wyoming
    • September 21, 1939
    ...... Coleman v. Zapp (Texas) . 151 S.W. 1040; Tanner v. Wilson (Ga.) 192 S.E. 428;. Rogers v. Rigell (Ga.) 188 S.E. 704; Reynolds v. Winship (Ark.) 299 S.W. 16; Ryon v. Thomas. (Ind.) 3 N.E. 653; Clemens Company v. Insurance. Company (Cal.) 71 P. 599. Garrison v. Davis. ... Estate (Cal.) 73 P. 240. The court may amend its record. at any time. School District v. Western Tube. Company, 13 Wyo. 304; Odell v. Reynolds, 70 F. 656; Carter v. Trucking Company (Cal.) 47 P.2d 733. Courts have power to make their records speak the truth. Glennon v. ......
  • Pulitzer Publishing Company v. Allen
    • United States
    • Court of Appeal of Missouri (US)
    • November 18, 1908
    ...from the amendment. [Balch v. Show, 7 Cush. 282; McClellan v. Bradley, 7 Ind. 503, and Cromwell v. Bank, Emery v. Whitwell and Odell v. Reynolds, supra.] final point is this: looking at the record, including the minute entered by the previous judge, on which the court below ordered the cont......
  • United States v. 706.98 ACRES OF LAND, ETC., Civ. A. No. 675.
    • United States
    • United States District Courts. 8th Circuit. Western District of Arkansas
    • January 13, 1958
    ...must be shown by extrinsic evidence. Long before adoption of the Federal Rules of Civil Procedure the rule was stated in Odell v. Reynolds, 6 Cir., 70 F. 656, 660, as "Sometimes the propriety of such action exists in cases where the correction may be made upon that which appears in the reco......
  • Bradley Lumber Company v. Hamilton
    • United States
    • Supreme Court of Arkansas
    • July 7, 1913
    ...court had the power to amend its decree by nunc pro tunc entry after the lapse of the term. 23 Cyc. 867; 141 Pa.St. 266, 21 A. 592; 70 F. 656, 17 C. C. A. 317; 51 Ark. It was unnecessary to bring up the oral evidence, since it is clear that it was confined to the point of identifying a reco......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT