Bush v. Hanson

• Decision Date: 30 September 1873
• Citation: 70 Ill. 480,1873 WL 8631
• Parties: HIRAM F. BUSHv.JOSEPH H. HANSON.
• Court: Illinois Supreme Court

70 Ill. 480

1873 WL 8631 (Ill.)

HIRAM F. BUSH

v.JOSEPH H. HANSON.

Supreme Court of Illinois.

September Term, 1873.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of Will county; the Hon. JOSIAH MCROBERTS, Judge, presiding.

Mr. G. D. A. PARKS, for the plaintiff in error.

Mr. GEORGE S. HOUSE, for the defendant in error.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

This was a motion to set aside a judgment by confession, against Bush, the plaintiff in error, by virtue of a warrant of attorney.

The note upon which the judgment was rendered bore date September 8th, 1871, payable six months after date, and was accompanied by a warrant of attorney, of the same date, executed by Bush, the maker of the note, especially authorizing the entry of the appearance of Bush, and the confession of judgment upon the note at any time after the date of the warrant of attorney. The judgment was confessed by the attorney authorized, in open court, on the 30th day of September, 1871. The motion to set it aside was made June 4th, 1873, and was overruled by the court below, from which decision in overruling the motion, Bush prosecutes this writ of error. The main point urged for the reversal of the judgment is, that the record does not affirmatively show the production, by the plaintiff, of the testimony required by the 2d section of the act of 24th of February, 1859, entitled “An act concerning confession of judgment.”

The provision of that section is, that before any court shall be authorized to render judgment on any note not then being due by the terms thereof, by virtue of any supposed authority contained in any accompanying power of attorney, the plaintiff shall prove, by testimony to be produced and taken orally in court, that at the time of the execution of the power of attorney, the person who executed the same was particularly informed, and then knew, that the meaning of the power of attorney was, to authorize the rendition of judgment on the note, before the same should become due by its terms; and also, that the plaintiff will be in imminent danger of losing the debt thereby secured, unless a judgment shall be rendered thereon immediately.

It is contended by counsel for defendant in error that the proof required by the statute is necessary to give jurisdiction; that in the rendition of the judgment, the court exercised a special statutory authority, not according to the course of the common law, and which does not belong to it as a court of general jurisdiction, and that, therefore, the proceeding stands on the same footing with those of courts of inferior jurisdiction, where everything will be presumed to be without the jurisdiction which does not appear by the record to be within it.

Jurisdiction has been thus defined: The power to hear and determine a cause, is jurisdiction; it is coram judice whenever a case is presented which brings this power into action. United States v. Arredondo et al. 6 Pet. 709. There can be no...