Bryant v. Harding

• Decision Date: 31 January 1860
• Citation: 29 Mo. 347
• Parties: BRYANT et al., Plaintiffs in Error, v. HARDING et al., Defendants in Error.
• Court: Missouri Supreme Court

29 Mo. 347

BRYANT et al., Plaintiffs in Error,

v.HARDING et al., Defendants in Error.

Supreme Court of Missouri.

January Term, 1860.

1. Where a judgment by confession is rendered, under a power of attorney from the debtor, as authorized by the 24th section of the 12th article of the act concerning practice (R. C. 1855, p. 1283,) the affidavit required of the plaintiff must be made by himself; the attorney in fact or agent of the plaintiff in the confessed judgment can not make the required affidavit.

2. Where a judgment is confessed irregularly, other judgment creditors are entitled to have the same set aside on motion.

Error to Clay Circuit Court.

On the 27th of April, 1858, one Murray gave James H. Moss a power of attorney to confess a judgment against him in favor of Roger E. Harding, George C. Kimbrough and Richard F. Toomer. At the April term, 1858, of the Clay circuit court, a judgment was confessed under this power. The affidavit on the part of the plaintiffs in the judgment, Harding, Kimbrough and Toomer, was made by their agent Thomas McCarty. At the same term Edward V. Bryan and others, alleging that they were judgment creditors of Murray, moved the court to set aside the judgment by confession on the ground that plaintiffs therein had not made affidavit as required by law. The court overruled the motion.

Hovey, for plaintiffs in error.

I. The judgment by confession ought to have been set aside. The plaintiff and not the agent must make the affidavit. (R. C. 1855, p. 1282, § 24.)

Parsons & Edmunds, for defendants in error.

I. The affidavit was sufficient. It was as valid as if made by the plaintiffs themselves or either of them. The plaintiffs in this motion could not take advantage of any irregularity in the judgment, if any existed, by motion. Their remedy was in the nature of a bill in equity. The motion was properly overruled.

EWING, Judge, delivered the opinion of the court.

The question in this case involves the interpretation of section 24 of article 12 of our practice act, respecting the confession of judgments. Was the agent of the defendants in error authorized to make the affidavit required by the statute in such cases? The statute authorizes a judgment by confession, for a debt owing upon a note, bond, or bill of exchange, under the power of attorney of the debtor acknowledged as required of deeds of land for their record and filed in the court rendering the judgment at the time of its rendition, together with the note, bond or bill of exchange and the affidavit of the plaintiff that the debt is bona fide, for a fair and valuable consideration after allowing...