Cohn, Baer & Berman v. Bromberg
Decision Date | 23 January 1919 |
Docket Number | 32235 |
Parties | COHN, BAER & BERMAN, Appellees, v. DAVID BROMBERG, Appellant |
Court | Iowa Supreme Court |
Appeal from Appanoose District Court.--D. M. ANDERSON, Judge.
ACTION upon a judgment by confession upon warrant of attorney of record in Cook County, Illinois.
Reversed.
Howell Elgin & Howell, for appellant.
H. E Valentine, for appellees.
I.
One Jacobi, son-in-law of defendant, was employed by a contract in writing, as salesman for plaintiff for one year from August 1, 1913, to August 1, 1914. The compensation to be paid was 7 1/2 per cent of the total sales made by him and consummated by the delivery of the goods. The contract also provided for advance payments to him as follows: $ 25 per week, and, when on the road, an additional sum of $ 50 per week. All sums advanced were to be charged to Jacobi, and repaid out of the commissions earned; and if the total earnings at the close of the contract were less than the amount advanced to him, he agreed to pay the difference to plaintiff in cash. For the purpose of securing the payment of the latter sum, the defendant executed an instrument in writing, by the terms of which he bound himself to pay plaintiff whatever amount, if any, was due it from Jacobi, when the services were concluded, and further authorized any attorney of record in Cook County, in term time or vacation, to appear for him and confess judgment therefor, together with costs and a reasonable sum for attorney fees. After working about six months, Jacobi was discharged by plaintiff. At the time of his discharge, he was, as shown by plaintiff's books, indebted to it in the sum of $ 376.40. On September 12, 1914, one Ward B. Sawyer, an attorney of record in Cook County, appeared in the circuit court thereof in term time, and confessed judgment against the defendant for the above amount and costs.
On December 12, 1914, plaintiff commenced suit in the district court of Appanoose County, Iowa, upon the judgment so entered. Numerous defenses to plaintiff's cause of action were pleaded, among which were (a) that the alleged warrant of attorney was void under the laws of Illinois, and did not confer authority upon Sawyer to confess judgment against him, and (b) that same was cancelled, rescinded, and revoked by mutual agreement of the parties, before judgment was entered. At the close of all the evidence, the court, upon motion of counsel for plaintiff, directed the jury to return a verdict in its favor.
While numerous alleged errors of the court are complained of by counsel for appellant, most of them, in view of a verdict for plaintiff by direction of the court, have no conceivable merit upon this appeal, and will not be discussed. The principal questions involved are whether certain defenses pleaded by defendant were available to him against the judgment rendered by an Illinois court of competent jurisdiction, and whether the issues tendered thereby, together with a counterclaim for a considerable sum, should have been submitted to the jury.
Section 88, Hurd's Revised Statutes, 1913, page 1873, is as follows:
"Any person, for a debt, bona fide due, may confess judgment by himself or attorney duly authorized either in term time or vacation without process."
The ground upon which the validity of the warrant of attorney is assailed by defendant is that it was obtained by fraud, and does not fix the amount for which judgment may be confessed, or contain provisions for determining same. Instruments of the character in question are universally strictly construed. Hamilton v. Schoenberger, 47 Iowa 385; Cuykendall v. Doe, 129 Iowa 453, 105 N.W. 698; Gardner v. Bunn, 132 Ill. 403 (23 N.E. 1072); Weber v. Powers, 213 Ill. 370 (72 N.E. 1070); First Nat. Bank v. White, 220 Mo. 717 (120 S.W. 36); National Exch. Bank v. Wiley, (Neb.) 92 N.W. 582.
Article 4, Section 1, of the Constitution of the United States provides that:
But judgments of a sister state are entitled to no greater credit in the courts of this state than will be given thereto by the courts of the state where rendered, and may, in an action thereon, be impeached for want of jurisdiction or fraud in their procurement. Rogers v. Gwinn, 21 Iowa 58; Chaloupka v. Martin, 179 Iowa 1173, 162 N.W. 567; Cuykendall v. Doe, supra; Mahoney v. State Ins. Co., 133 Iowa 570, 110 N.W. 1041; Longueville v. May, 115 Iowa 709, 87 N.W. 432; Teel v. Yost, 128 N.Y. 387 (28 N.E. 353); Forrest v. Fey, 218 Ill. 165 (75 N.E. 789); Mottu v. Davis, 151 N.C. 237 (65 S.E. 969); Gray v. Richmond Bicycle Co., 167 N.Y. 348 (60 N.E. 663); Kenney v. Supreme Lodge, (Ill.) 120 N.E. 631.
Gasquet v. Lapeyre, 242 U.S. 367 (61 L.Ed. 367, 37 S.Ct. 165).
Mr. Justice Dillon, speaking for the court in Rogers v. Gwinn, 21 Iowa 58, referring to an equitable defense set up in an answer to a cause of action based upon a judgment of a Kentucky court, said:
Judgment by confession upon warrant of attorney is not authorized in this state. Hamilton v. Schoenberger, supra; Cuykendall v. Doe, supra. But where valid by the law of the state where entered, it will be given the same force and effect by the courts of this state as is accorded thereto in the state where rendered. Cuykendall v. Doe, supra.
No notice was served upon the defendant, and he appears not to have known of the proceedings in the Illinois court until this action was commenced. The only jurisdiction obtained by the circuit court of Cook County over the defendant was such as the instrument in question conferred. If the attorney who signed the confession was not authorized to do so, then the Illinois court was without authority or jurisdiction to enter judgment thereon. The court was bound to act within the strict authority conferred by the instrument executed by defendant. If the authority conferred thereby had been previously cancelled, rescinded, or revoked, the judgment was wholly void. Green v. Equitable Mut. L. & E. Assn., 105 Iowa 628, 633, 75 N.W. 635; Cuykendall v. Doe, 129 Iowa 453, 105 N.W. 698; Hester v. Frink, 189 Mo.App. 40 (176 S.W. 481); Mottu v. Davis, 151 N.C. 237 (65 S.E. 969); Weber v. Powers, supra; Jaster v. Currie, 69 Neb. 4 (94 N.W. 995); First Nat. Bank v. White, supra; Dobbins v. Dupree, 39 Ga. 394; Chicago Bldg. Society v. Haas, 111 Ill. 176; Davant v. Carlton, 57 Ga. 489.
The Supreme Court of Nebraska, in National Exch. Bank v Wiley, 92 N.W. 582, held that a judgment by confession upon a warrant of attorney, entered by an Ohio court of competent jurisdiction, was void because the...
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Cohn v. Bromberg
...185 Iowa 298170 N.W. 478COHN, BAER & BERMANv.BROMBERG.No. 32235.Supreme Court of Iowa.Jan. 23, 1919 ... Appeal from District Court, Appanoose County; D. M. Anderson, Judge.Action ... ...
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