Cohn v. Bromberg

• Decision Date: 23 January 1919
• Docket Number: No. 32235.,32235.
• Citation: 170 N.W. 478,185 Iowa 298
• Court: Iowa Supreme Court
• Parties: COHN, BAER & BERMAN v. BROMBERG.

185 Iowa 298

170 N.W. 478

COHN, BAER & BERMAN

v.BROMBERG.

No. 32235.

Supreme Court of Iowa.

Jan. 23, 1919.

Appeal from District Court, Appanoose County; D. M. Anderson, Judge.

Action upon a judgment by confession upon warrant of attorney of record in Cook County, Ill. Reversed.Howell, Elgin & Howell, of Centerville, for appellant.

H. E. Valentine, of Centerville, for appellee.

STEVENS, J.

One Jacobi, a 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: Twenty-five dollars 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of Illinois, and did not confer authority upon Sawyer to confess judgment against him; and (b) that same was canceled, rescinded, and revoked by mutual agreement of the parties, before judgment was entered.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 Rev. St. Ill. 1913, p. 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, 3 L. R. A. (N. S.) 449, 113 Am. St. Rep. 472;Gardner v. Bunn, 132 Ill. 403, 23 N. E. 1072, 7 L. R. A. 729;Weber v. Powers, 213 Ill. 370, 72 N. E. 1070, 68 L. R. A. 610;First Nat. Bank v. White, 220 Mo. 717, 120 S. W. 36, 132 Am. St. Rep. 612, 16 Ann. Cas. 889;National Exch. Bank of Tiffin, Ohio, v. Wiley, 3 Neb. (Unof.) 716, 92 N. W. 583.

[1]Article 4, section 1, of the Constitution of the United States provides that--

“Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may, by general laws, prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof.”

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. Insurance Co., 133 Iowa, 570, 110 N. W. 1041, 9 L. R. A. (N. S.) 490;Longueville v. May, 115 Iowa, 709, 87 N. W. 432;Teel v. Yost, 128 N. Y. 387, 28 N. E. 353, 13 L. R. A. 796;Forrest v. Fey, 218 Ill. 165, 75 N. E. 789, 7 L. R. A. (N. S.) 740, 109 Am. St. Rep. 249;Mottu v. Davis, 151 N. C. 237, 65 S. E. 969;Gray v. Richmond Bicycle Co., 167 N. Y. 348, 60 N. E. 663, 82 Am. St. Rep. 720;Kenney v. Supreme Lodge of the World, 285 Ill. 188, 120 N. E. 631.

“What the Constitution and the congressional enactment require is that a judgment of a court of one state, if founded upon adequate jurisdiction of the parties and subject-matter, shall be given the same faith and credit in a court of another state that it has by law or usage in the courts of the state of its rendition. This presupposes that the law or usage in the latter state will be brought to the attention of the court in the other state by appropriate allegation and proof, or in some other recognized mode; for the courts of one state are not presumed to know, and therefore not bound to take judicial notice of, the laws or usage of another state. Hanley v. Donoghue, 116 U. S. 1 [6 Sup. Ct. 242, 29 L. Ed. 535];Chicago & A. R. Co. v. Wiggins Ferry Co., 119 U. S. 615 [7 Sup. Ct. 398, 30 L. Ed. 519];Lloyd v. Matthews, 155 U. S. 222, 227 [15 Sup. Ct. 70, 39 L. Ed. 128, 130];Western Life Indemnity Co. v. Rupp, 235 U. S. 261, 275 [35 Sup. Ct. 37, 59 L. Ed. 220, 225]. Here the law or usage in Tennessee, where the judgment was rendered, was not in any way brought to the attention of the Louisiana court, and therefore an essential step in invoking the full faith and credit clause was omitted.” Gasquet v. Lapeyre, 242 U. S. 367, 37 Sup. Ct. 165, 61 L. Ed. 367.

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:

“It is true that for many purposes the judgment of the court of another state is conclusive, but not for all. Thus, in a suit on a foreign judgment, it is settled, both in the federal and state courts, that the judgment debtor may successfully defend by showing that the attorney who entered an appearance for him had no authority to do so. Harshey v. Blackmarr [20 Iowa, 161, 89 Am. Dec. 520], and authorities there collected. And courts are in the constant habit of relieving parties upon equitable terms from judgment rendered against them in consequence of the fraudulent acts of the successful party or his attorney. Id., and cases cited; 5 Am. L. Reg. (N. S.) 389, and cases cited; 2 Story, Eq. §§ 194, 195; Pearce v. Olney, 20 Conn. 544, approved [[[[[Dobson v. Pearce] 12 N. Y. 156 ;Milne v. Van Buskirk, 9 Iowa, 558. If the judgment sued on had been rendered by a court in Iowa, the facts found by the court below would be a good defense, at least in equity, to an action upon it, or sufficient to require a court of equity, upon petition filed for that purpose, to cancel it. And we cannot doubt that they would be so regarded by the courts of Kentucky, if this actionhad been brought in that state, or if the defendant, in that state had sought relief against the judgment. So that if we should hold, as the appellant insists we should, we would be giving to the judgment of the court of one sister state a greater force and effect than it would have there, and a greater force and effect than we would give to a like judgment rendered by our own courts. This the Constitution of the United States and the act of Congress do not require. We are only required to give to it the same effect here that it would have in the state of Kentucky.”

[2] 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 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).

[3] 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 canceled, rescinded, or revoked, the judgment was wholly void. Green v. Life Ass'n, 105 Iowa, 633, 75 N. W. 635;Cuykendall v. Doe, 129 Iowa, 453, 105 N. W. 698, 3 L. R. A. (N. S.) 449, 113 Am. St. Rep. 472;Hester v. Frink, 189 Mo. 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 National 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 of Tiffin, Ohio, v. Wiley, 3 Neb. (Uno...