Bonnett-Brown Corp. v. Coble

• Decision Date: 18 April 1928
• Docket Number: 330.
• Citation: 142 S.E. 772,195 N.C. 491
• Parties: BONNETT-BROWN CORPORATION v. COBLE.
• Court: North Carolina Supreme Court

142 S.E. 772

195 N.C. 491

BONNETT-BROWN CORPORATION v. COBLE.

No. 330.

Supreme Court of North Carolina

April 18, 1928

Appeal from Superior Court, Granville County; Barnhill, Judge.

Action by the Bonnett-Brown Corporation against C. E. Coble, doing business as the Oxford Public Ledger. From a judgment for defendant, plaintiff appeals. New trial.

Defendant sued on foreign judgment may interpose proper defenses including proof of fraud preventing him from having adversary trial of issue (U.S.C.A. Const. art. 4, § 1).

The plaintiff brought suit on a judgment for $440 purporting to have been given against the defendant in the municipal court of Chicago, and at the trial introduced in evidence an exemplified transcript of the proceedings, the material parts of which are as follows:

"Municipal Court of Chicago.

N C C 20B Transcript of Proceedings.

United States of America, State of Illinois, County of Cook, City of Chicago-ss:

In the Municipal Court of Chicago.

Pleas proceedings, and judgments, before the municipal court of Chicago, held in the city of Chicago, in the county of Cook and state of Illinois, at the places in the First district in said city provided by the corporate authorities of said city for the holding of said court in the year of our Lord 1926, and the independence of the United States, the one hundred and fifty-first.

Present: Hon. W. Joseph Hill, judge of the city court of Benton, county of Franklin, holding a branch of the municipal court of Chicago, at the request of the judges of said municipal court. Robert E. Crowe, State's Attorney.

Bernard W. Snow, Bailiff.

Attest: James A. Kearns, Clerk.

Be it remembered, to wit, that on the 14th day of August, A. D. 1926, the following among other proceedings were had in said court and entered of record therein, to wit:

The Bonnett -Brown Corporation, an Illinois Corporation v. C. E. Coble, Doing Business as 'Public Ledger.'

No. 1805630.

Contract Confession.

Now comes the plaintiff in this cause; also comes the defendant; who by virtue of defendant's warrant of attorney filed herein a cognovit confessing action of the plaintiff against the defendant and that the plaintiff has sustained damages herein against the defendant in the sum as set forth in said cognovit.

Whereupon the plaintiff moves the court for final judgment herein. It is therefore considered by the court that the plaintiff have and recover of and from the defendant, C. E. Coble, doing business as 'Public Ledger,' the damages of the plaintiff amounting to the sum of $440, in form as aforesaid confessed, together with the costs by the plaintiff herein expended, and that execution issue therefor."

The defendant denied not only the allegations of the complaint, but the jurisdiction of the court, and testified on the trial that he had never been in Illinois; that no process had been served on him; and that he had neither accepted service, nor employed an attorney to represent him, nor authorized an attorney or any other person to confess judgment in favor of the plaintiff.

The first issue was answered in the negative:

"Was the judgment sued on in this cause rendered by the municipal court of the city of Chicago, state of Illinois, upon service of process upon the defendant, or upon his voluntary appearance or confession of judgment?"

Judgment for the defendant; exception and appeal by the plaintiff upon error assigned.

Royster & Royster, of Oxford, for appellant.

Brummitt & Taylor, of Oxford, for appellee.

ADAMS J.

At common law one of the methods of confessing judgment was by means of a written authority directed to one or more attorneys to appear for the party executing it and to receive a declaration for him in an action at the suit of a person named therein, and thereupon to confess the same or to suffer judgment to pass by default. The writing was known as a warrant of attorney. As a rule, it was given as security for the obligation upon which judgment was authorized, and the service of process was not essential. Cuykendall v. Doe, 129 Iowa, 453, 105 N.W. 698, 3 L. R. A. (N. S.) 449, 113 Am. St. Rep. 472. The practice is now recognized in some of the states, and in others it is declared to be contrary to public policy. 3 Freeman on Judgments (5th Ed.) § 1303. Illinois is one of the states in which the practice is approved. In Bush v. Hanson, 70 Ill. 480, the Supreme Court remarked that the entry of judgment by cognovit under a warrant of attorney is a proceeding according to the course of the common law, which has been entertained by the courts in the ordinary exercise of their authority as courts of general jurisdiction. It appears from the exemplified transcript of the proceeding that the municipal court of Chicago awarded judgment in favor of the plaintiff by virtue of the defendant's warrant of attorney. The judgment recites the cognovit as "confessing action of the plaintiff against the defendant" and damages sustained by the plaintiff "in the sum set forth."

If the judgment is valid and effective in Illinois, it must be given such faith and credit in the courts of this state as it has by law or usage in the state in which it was pronounced. Constitution, United States, art. 4,§ 1; Mills v. Duryee, 7 Cranch, 481, 3 L.Ed. 411; Andrews v. Andrews, 188 U.S. 14, 23 S.Ct. 237, 47 L.Ed. 366; In re Chase, 195 N.C. 143, 141 S.E. 471. We quote an excerpt from the annotation appended to Egley v. Bennett, 196 Ind. 50, 145 N.E. 830, 40 A. L. R. 436, 441, in which quite a number of cases on the subject are cited:

"It is established, practically without dissent, that the fact that a judgment of a court of another state was entered under a warrant of attorney to confess judgment executed contemporaneously with the principal obligation, and without service of process or appearance other than that pursuant to the warrant itself, does not take it out of the full faith and credit provision of the Federal Constitution, or disentitle it to the recognition and effect accorded to other judgments of sister states, when asserted as the basis of an action or defense. And this is true whether or not such judgments of that kind are permitted in the state in which the judgment of the sister state is asserted."

The principle thus stated is maintained in 2 Black on Judgments (2d Ed.) § 868; 13 A. & E. (2d Ed.) 1006; Kingman v Paulson, 126 Ind. 507, 26 N.E. 393, 22 Am. St. Rep. 611; Teel v. Yost, 128 N.Y. 387, 28 N.E. 353, 13 L. R. A. 796; Bank v. Garland, 109 Mich. 515, 67 N.W. 559, 33 L. R. A. 83, 63 Am. St. Rep. 597; Crim v. Crim, 162 Mo. 544, 63 S.W. 489, 85 Am. St. Rep. 521, ...