Central Pennsylvania Conference Educational Society of Methodist Episcopal Church v. Larue

• Decision Date: 27 May 1912
• Citation: 148 S.W. 152,164 Mo.App. 93
• Parties: CENTRAL PENNSYLVANIA CONFERENCE EDUCATIONAL SOCIETY OF THE METHODIST EPISCOPAL CHURCH, Appellant, v. HARPER M. LARUE, Respondent
• Court: Kansas Court of Appeals

148 S.W. 152

164 Mo.App. 93

CENTRAL PENNSYLVANIA CONFERENCE EDUCATIONAL SOCIETY OF THE METHODIST EPISCOPAL CHURCH, Appellant, v. HARPER M. LARUE, Respondent

Court of Appeals of Missouri, Kansas City

May 27, 1912

Appeal from Jackson Circuit Court.--Hon. O. A. Lucas, Judge.

AFFIRMED.

Judgment affirmed.

New & Krauthoff, John N. Davis and John Taylor for appellant.

George Kingsley for respondent.

OPINION

ELLISON, J.

This action is on a judgment rendered against defendant in the state of Pennsylvania. The defendant prevailed in the trial court.

The judgment purports to be by confession of defendant, entered in the Pennsylvania court by the prothonotary of that court it being contended by plaintiff that the instruments upon which the judgment was taken not only authorized the confession, but authorized the prothonotary to make or enter such confession. One of the obligatory instruments upon which the judgment was rendered (the others beink like it) is as follows:

"WILLIAMSPORT, PA., April 15, 1896.

"On demand, I promise to pay, for value received, to the treasurer of the Central Pennsylvania Conference Educational Society of the Methodist Episcopal Church, the sum of seventy-five..../100 dollars, subject to the following conditions, to-wit:

"I have given the above note for money borrowed as a means of securing an education preparatory to becoming a minister or missionary of the Methodist Episcopal Church, on the following conditions, viz.:

"1. That payment will not be demanded while I consistently pursue my studies and make other appropriate efforts to attain the object above stated.

"2. That upon leaving school settlement be made with the treasurer by giving a note covering all my indebtedness which note shall bear interest at five per cent after two years, said interest to be paid on January 1 and July 1 of each year.

"3. That in case of any change of purpose, or of my failure to enter the ministry of the Central Pennsylvania Conference of the Methodist Episcopal Church (unless it be through loss of health) I shall hold myself to be both morally and legally held to make payments of said note in full, with interest at six per cent from the date of the note.

"4. That, except in the case of foreign mission service, I shall hold myself both morally and legally bound to refund to the board after two years from the time I cease to attend school or sooner if practicable, the full amount of principal, together with the interest accruing after said two years, and if I fail to keep or perform any or all of the above stated conditions, I hereby confess judgment for the above sum, hereby waiving the benefit of any and all exemption laws, release of all errors and stay of execution."

It will be observed that the latter part of the promissory instrument executed by defendant authorized a confession of judgment--it was, in fact, a confession of judgment, so far as it could be made by the paper itself. It does not appear whether defendant resided in and was a citizen of the state of Pennsylvania when he executed the instrument in 1896, though it does appear that he has been a resident of this state since April, 1899. We therefore cannot say whether his citizenship would have controlling effect, if it were necessary to pass upon this branch of the case, as intimated in Grover & Baker S. M. Co. v. Radcliffe, 137 U.S. 287, 298, 34 L.Ed. 670, 11 S.Ct. 92.

But there is another branch of the case which we believe should control an affirmance of the view taken by the circuit court. While a prothonotary in a foreign state, may enter a judgment as by confession, when duly authorized in the writing evidencing the defendant's debt, and such judgment will be given full faith and credit in a suit upon it in this state (Randolph v. Keiler, 21 Mo. 557; Crim v. Crim, 162 Mo. 544, 63 S.W. 489), yet, if the duty of the prothonotary cannot be ascertained from the provisions of the obligatory paper, and the precise sum for which judgment should be rendered cannot be ascertained from the paper, and an inquiry aliunde the paper is required, it must pass under judicial scrutiny and direction and cannot be acted upon by the prothonotary. Thus, in Connay v. Halstead, 73 Pa. 354, there was a written contract for the sale of land at ten dollars per acre, the quantity to be determined by a survey, and it was held that a prothonotary's authority given in the contract to confess judgment for the sum found to be due, could not be exercised. It is said in that case that the party himself must have acknowledged the sum due.

The same rule has been stated in Richards v. Richards, 135 Pa. 239, 19 A. 1077, and Whitney v. Hopkins, 135 Pa. 246, 19 A. 1075, wherein that case was referred to with approval. In those cases the right of the prothonotary to confess the judgment was upheld under the facts disclosed in each, but on the specific ground that the prothonotary could ascertain from the instrument the sum for which judgment was to be entered. The power to confess the judgment must be strictly pursued and no judicial functions should be left with the prothonotary. In Campbell v. Goddard, 117 Ill. 251, 7 N.E. 640, the instrument confessed judgment for a given sum "and a reasonable attorney's fee," and it was held that the clerk could not hear evidence and determine what a reasonable attorney's fee was, and that: "In fixing the amount of the judgment he can only look at the cognovit, and enter judgment for the amount there confessed." In Grover & Baker S. M. Co. v. Radcliffe, supra, the Supreme Court of the United States held that a power to confess judgment, given to "any attorney of any court of record," was not authority to a prothonotary in Pennsylvania to enter such confession, which would be recognized outside of Pennsylvania, although authorized by the laws of that state.

It will be observed that the obligatory writing in this instance does not authorize some one other than the prothonotary to confess judgment; nor does it, in terms, authorize that officer to do so. So we have not a case, like some of those cited, where some one other than the person authorized, has confessed the judgment, and we assume that the confession, being entered by the prothonotary, sufficiently complies with the laws of Pennsylvania to make the judgment valid, so far as the person entering it is concerned.

But the instrument in this case upon which the confession of judgment is entered, upon its face discloses that judicial inquiry must be had to ascertain whether anything is due. The provisions of the...