Blake v. State Bank of Freeport
| Decision Date | 17 February 1899 |
| Citation | 52 N.E. 957,178 Ill. 182 |
| Parties | BLAKE et al. v. STATE BANK OF FREEPORT. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from appellate court, Second district.
The State Bank of Freeport obtained judgment by confession against Seymour A. Blake and others. Order setting aside the judgment was reversed by the appellate court (78 Ill. App. 166), and defendants appeal. Affirmed.A. D. Early, for appellants.
William Marshall, for appellee.
A judgment by confession in favor of appellee against appellant Seymour A. Blake was entered September 4, 1897, in the circuit court of Winnebago county, for $3,515.68, which was the amount of a promissory note executed by said Blake to appellee, September 3, 1897, with interest, and $15 for attorney's fees. On September 13, 1897, Blake executed a voluntary assignment for the benefit of his creditors to appellant Joel B. Whitehead, and on October 12, 1897, appellants entered their motion to vacate said judgment. The motion was heard upon affidavits, and was allowed, and an order was entered setting aside the judgment and queshing an execution which had been issued thereon. On appeal to the appellate court, that order was reversed and this appeal was prosecuted.
Such an application as this is addressed to the sound discretion of the court, and calls for the exercise of the equitable power of the court over its own judgments. A court of law, being invested with such power, will not send a defendant against whom a judgment has been entered by confession to a court of equity for redress, but the power, whether exercised by a court of law or of equity, is an equitable one, to be governed by the same principles. If a judgment so entered was not confessed by authority of the defendant, it will be void for want of power to confess it, and a defendant who is injured by it may have it set aside upon motion. Stein v. Good, 115 Ill. 93, 3 N. E. 735;Whitney v. Bohlen, 157 Ill. 571, 42 N. E. 162. So, also, if a power to confess a judgment has been obtained by fraud, so that it is vitiated and rendered a nullity by such fraud, it will be set aside. Kingman & Co. v. Reinemer, 166 Ill. 208, 46 N. E. 786. In such cases the judgment is to be considered as absolutely void. For mere irregularities or defects in the proceedings the court will not set aside a judgment, except where a good defense on the merits is shown, but if the judgment is unjust and against conscience, it will be opened, and permitted to stand as security, until the case can be heard on its merits. Rising v. Brainard, 36 Ill. 79; Farwell v. Meyer, Id. 510; Holmes v. Parker, 125 Ill. 478, 17 N. E. 759;Hansen v. Schlesinger, 125 Ill. 230, 17 N. E. 718.
In this case no defense on the merits was shown. The debt for which the note was given was due and was just, and so is the judgment. The grounds upon which the judgment is attacked are alleged irregularities in the execution of the power and fraud in procuring the execution of the warrant. One of these grounds is that the affidavit that the signature of Blake was genuine was made September 3, 1897, before a cause of action had accrued on the note. This is not a good objection. The office of such an affidavit is not to prove a cause of action, but to establish the fact that the signature is genuine. There is no reason why the fact may not as well be proved at any time after the making of the signature as after a cause of action has arisen. Where the attempt is to furnish evidence of a cause of action, such cause of action must have accrued when the proof is made; but, where it is necessary to prove a signature, all that is necessary is that the signature shall be in existence and can be identified. There can be no possible difference whether the affidavit was made at one time or another, after the fact to be proved exists. If the time when the affidavit was made constituted any objection at all, it would not be available without showing a good defense, and that is not attempted.
All the necessary papers were filed at the time of the entry of judgment and the judgment and proceedings are regular on their face. There is an attempt, however, to show by affidavits that the...
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