Claflin & Co. v. Dodson

• Decision Date: 31 May 1892
• Citation: 19 S.W. 711,111 Mo. 195
• Parties: Claflin & Co., Appellants, v. Dodson et al
• Court: Missouri Supreme Court

19 S.W. 711

111 Mo. 195

Claflin & Co., Appellants, v. Dodson et al

Supreme Court of Missouri, Second Division

May 31, 1892

July 1892

Appeal from Greene Circuit Court. -- Hon. W. D. Hubbard, Judge.

Affirmed.

Frank Dawson & Garvin and F. S. Heffernan for appellants.

(1) The statement for confession was insufficient under the statute to authorize the court to enter up the judgment. First. It did not state the facts out of which the indebtedness arose. Stern v. Mayer, 19 Mo.App. 511; Bank v Mayer, 19 Mo.App. 517; Gilman v. Hovey, 26 Mo. 280; Howe v. Dorscheimer, 31 Mo. 349; Bryan v. Miller, 28 Mo. 32; Bank v. Mayer, 93 Mo. 417; Hard v. Foster, 98 Mo. 297; Black on Judgments, secs. 52, 63; Bank v. Allison, 37 Hun (N. Y.) 135; Moody v. Townsend, 3 Abb. Pr. (N. Y.) 375; Lanning v. Carpenter, 20 N.Y. 447; Davenport v. Learry, 95 N.C. 203. Second. It does not show the sum confessed is justly due. Edgar v. Grier, 7 Iowa, 136; Reading v. Reading, 24 N. J. Law, 358; McHenry v. Shephard, 2 Mo.App. 378; 1 Black on Judgments, sec. 62. Third. It does not authorize the entry of the judgment in favor of the plaintiff and against the defendant. Fourth. The statement for confession being insufficient under the statute, the judgment entered thereon is an absolute nullity. Bernard v. Douglass, 10 Iowa 370; Kennedy v. Lowe, 9 Iowa, 580; 1 Black on Judgments, sec. 67, where the authorities on both sides of the proposition are cited. Fifth. If the statement of confession does not comply with the statutory provisions, its invalidity for that reason cannot be overcome by showing that the debt is bona fide. See New York and Iowa cases above cited; Atwater v. Bank (1891), 45 Minn. 341, 351; Cordier v. Schloss, 18 Cal. 576. (2) The evidence shows that the indebtedness (if there is a bona fide indebtedness, which we deny, and which denial, inferences from the evidence justify) arose in an entirely different manner from that set forth in the statement for confessions, and the statement was, therefore, misleading and did not afford a clue to the creditor who might wish to inquire into the bona fides of the debt for which confession was made. (3) The judgment is invalid as against the plaintiffs herein, although it may be good as between the parties, because the Christian name of the plaintiff is not given, and the judgment is a fraudulent lien standing in the way of the plaintiffs' lien by attachment. The judgment is in favor of "L. Oppenheimer," and the law does not recognize a man by his initial. Martin v. Barron, 37 Mo. 30; Skelton v. Sackett, 91 Mo. 377; Steinmann v. Strimple, 29 Mo. 478; Elting v. Gould, 96 Mo. 535; Crawford v. Wilcox, 3 S.W. 695; McGaugey v. Woods, 8 N.E. 7, and cases cited.

Goode & Cravens for respondents.

OPINION

Macfarlane, J.

On the thirty-first day of December, 1886, a judgment by confession was rendered by the circuit court of Greene county in favor of one L. Oppenheimer, and against one Victor Sommers for $ 3,030. This judgment purported to have been upon two promissory notes made by Sommers to Oppenheimer, for $ 1,500 each, one dated November 18, 1886, and the other November 27, 1886, each bearing interest at ten per cent. and payable on demand.

The statements upon which this judgment was rendered were the same with the exception of the dates of the transaction. One of them was as follows:

"State of Missouri, "Greene County.]

"L. Oppenheimer, plaintiff, v. "Victor Sommers, defendant.] In the Circuit Court, November Term, 1887.

"I, Victor Sommers, the person designated as defendant in the above-entitled cause, come now and state to the court that on the eighteenth day of November, 1886, I borrowed of L. Oppenheimer, or the person designated as plaintiff in the above-entitled cause, the sum of $ 1,500; that on the day last aforesaid the said L. Oppenheimer paid to me said sum of $ 1,500 good and lawful money of the United States; that I, said Sommers, did at that time, and for the consideration of said sum of $ 1,500 so paid me as aforesaid, make, execute and deliver to said L. Oppenheimer my promissory note for said sum of $ 1,500, payable on demand, with interest from date at the rate of ten per cent. per annum; that payment of said note and the interest thereon has this day by said Oppenheimer been demanded of me, and I now confess that I do owe to the said L. Oppenheimer the sum of $ 1,516.70, the amount of the principal and interest on said note to this date, and by reason of the premises aforesaid, and I do here now in court consent that judgment may now be rendered against me on the said sum of $ 1,516.70 in favor of said L. Oppenheimer."

To this statement was attached the affidavit of Sommers in due form.

On the day this judgment was rendered an execution was issued and placed in the hands of J. C. Dodson, sheriff of Greene county, and which was by him, on the same day, levied upon a stock of goods belonging to Sommers.

On the fifth day of February, plaintiffs, H. B. Claflin & Co., commenced a suit in said court, by attachment against Sommers, to recover a debt of $ 4,721.98 for goods sold him. A writ of attachment was issued, placed in the hands of the sheriff, and by him, on the same day, levied upon this stock of goods.

Plaintiff prosecutes this suit under section 571, Revised Statutes, 1889, for the purpose of setting aside said judgment, execution and levy on the ground that the judgment was fraudulent in law and fact, and was confessed with the purpose and intent of hindering, delaying and defrauding the bona fide creditors of defendant; and for the further reason that the statement upon which the judgment was entered was insufficient to authorize the judgment. The judgment was for defendant, and plaintiff appealed.

I. The statute, section 2230, Revised Statutes, 1889, authorizes a judgment by confession to be entered against a debtor, who will file a statement verified by affidavit to the following effect: First, it must state the amount for which the judgment may be rendered, and authorize the entry of a judgment thereon; second, if it be for money due, or to become due, it must state concisely the facts out of which it arose, and must show that the sum confessed therefor is justly due, or to become due.

Two objections are made to the sufficiency of these statements: First, they do not state sufficiently, in detail, the facts out of which the indebtedness arose; second, they do not show that the sum confessed was justly due, or to become due.

The question raised by the first of these objections has frequently come before this and the courts of other states, having substantially the same statutory requirements, and the construction of the statute is very well settled. In Bryan v. Miller, 28 Mo. 32, it is said that the statement need not be as "particular as a bill of particulars, but it ought to be sufficiently particular to afford a clew to a creditor, if there is fraud, and he desires to investigate it." This follows the construction of the New York court of appeals given to the statute of that state, from which ours was literally copied. Chappel v. Chappel, 12 N.Y. 215; Dunham v. Waterman, 17 N.Y. 9.

In Mechanics' Bank v. Mayer, 93 Mo. 417, 6 S.W. 237, Black, J., after approving what was said in Bryan v. Miller, supra, adds: "Manifestly, the degree of particularity must depend upon the character of the transaction. If the debt is a note given for goods, a reasonably specific bill of the goods, showing the dates of sale, should be...