Crim v. Crim

• Decision Date: 21 May 1901
• Citation: 63 S.W. 489,162 Mo. 544
• Parties: CRIM, Appellant, v. CRIM
• Court: Missouri Supreme Court

63 S.W. 489

162 Mo. 544

CRIM, Appellant, v. CRIM

Supreme Court of Missouri

May 21, 1901

Rehearing Denied 162 Mo. 544 at 555.

Appeal from Barton Circuit Court. -- Hon. D. P. Stratton, Judge.

Reversed and remanded.

White & McCammon for appellant.

(1) The judgment rendered in Ohio was a regular, valid judgment in that State. Lessee v. Thompson, 3 Ohio 272; Huntington v. Finch, 3 Oh. St. 445; Watson v Paine, 25 Oh. St. 340; Callen v. Ellison, 13 Oh. St. 446; Clements v. Hull, 35 Oh. St. 141. (a) The courts of Missouri will give the Ohio judgment the same force and effect it would have in Ohio, and as ascertained by the laws of Ohio. 2 Black on Judgments, secs. 860, 861, 868. (b) Judgments by confession, on warrant of attorney as this are recognized by the courts of this State as valid. Randolph v. Keiler, 21 Mo. 557; Harness v. Admr., 19 Mo. 323. (2) Did defendant sustain his attack upon the Ohio judgment? Defendant, in his answer, alleges, in endless iteration, that he did not know there was in the note a warrant of attorney to confess judgment, and that plaintiff falsely and fraudulently represented that it was simply a promissory note to show a settlement, and if there was a warrant of attorney to confess judgment in said note it was incorporated therein by plaintiff, falsely and fraudulently, for the purpose of obtaining an advantage over defendant, and was concealed from him "by the false and fraudulent statement that the same was a note and plaintiff wanted it only to show a settlement." But the note not only fails to show any fraud or misrepresentation -- it shows the fullest opportunity to read what was signed. The note was the ordinary printed form which had been in common use in that community among business men for many years; the defendant had been in active business there for twenty years, and had given a great many such judgment notes, and all in all, every element of fraud, which has been held necessary in this State to annul a judgment, is lacking in this evidence. Irvine v. Leyh, 102 Mo. 206; s. c., 124 Mo. 364; Payne v. O'Shea, 84 Mo. 132; Murphy v. DeFrance, 101 Mo. 157; McClanahan v. West, 100 Mo. 320; Bigelow on Estoppel (3 Ed.), 162, 163. (3) The defendant can not, under his own evidence, nullify the warrant of attorney contained in the note. Taylor v. Fox, 16 Mo.App. 529. A person who is sui juris can not deliberately sign a contract in writing and then, in the absence of evidence creating any inference of fraud or imposition, be heard to say that such instrument is not his agreement. Campbell v. Van Houten, 44 Mo.App. 238; Rothschild v. Frensdorf, 21 Mo.App. 323; Brown v. Railroad, 18 Mo.App. 568; Robinson v. Jarvis, 25 Mo.App. 421; Patterson v. Railroad, 56 Mo.App. 662; Wyrick v. Railroad, 74 Mo.App. 412; Kellerman v. Railroad, 136 Mo. 188; Gwin v. Waggoner, 98 Mo. 327; Girard v. Car Wheel Co., 46 Mo.App. 106; Palmer v. Continental Ins. Co., 31 Mo.App. 472; Snider v. Express Co., 63 Mo. 376; O'Bryan v. Kinney, 74 Mo. 125; Railroad v. Cleary, 77 Mo. 634; Herndon v. The Triple Alliance, 45 Mo.App. 432; Mateer v. Railroad, 105 Mo. 352; Shanley v. Gaslight Co., 63 Mo.App. 131; 1 Wharton on Const., sec. 196; School District v. Ins. Co., 61 Mo.App. 599; Mensing v. Ins. Co., 36 Mo.App. 602; Ins. Co. v. Davis, 59 Mo.App. 405; Holloway v. Railroad, 62 Mo.App. 56; Mfg. Co. v. Fd'ry Co., 79 Mo.App. 655.

Thurman, Wray & Timmonds for respondent.

(1) The following Missouri cases hold that a judgment, although warranted by the laws of a sister State, where the defendant is not served with process, and who does not in fact enter his appearance, is not "records of judicial proceedings" within the meaning of section I, article 4 of the Federal Constitution. Overstreet v. Shannon, 1 Mo. 375; Sallee v. Hays, 3 Mo. 116; Smith v. Ross, 7 Mo. 464; Gillett v. Camp, 23 Mo. 375; Miles v. Jones, 28 Mo. 87; Foote v. Newell, 29 Mo. 400; Latimer v. Railroad, 43 Mo. 105; Sevier v. Roddie, 51 Mo. 580; Gilbreath v. Bunce, 65 Mo. 349. Outside of the Supreme Court of the United States and the Supreme Court of Missouri the weight of the authority, including text-writers as well as adjudicated cases, is against the validity of such a judgment outside of the territorial limits of the sovereignty where rendered, and not within the meaning of the Federal Constitution and statutes giving to the "records and judicial proceedings" of other States "full faith and credit." We call the attention of the court to the following authorities in support of this last proposition. Cooley's Con. Lim., secs. 495, 496, 508; Story on Conflict of Laws, secs. 539, 540; Black's Const. Law, 233; Wharton on Conf. Law, secs. 656, 660; 2 Freeman on Judg., secs. 562, 563, and n. 1; Thompson v. Whitman, 18 Wall. 457; Weaver v. Boggs, 38 Md. 255; Smith v. Grady, 68 Wis. 215; Bowler v. Huston, 32 Gratt. 266; Underwood v. McVeigh, 23 Gratt. 409; McEwan v. Zimmerman, 38 Mich. 765; Thorner v. Batory, 41 Md. 593; Anderson v. Hadden, 33 Hun, 435. (2) The respondent was certainly entitled to his day in court. The appellant after having sued on the note in the Barton Circuit Court and after having respondent brought into court by summons, withdraws the instrument sued on, takes it back to Ohio, into a county where neither appellant nor respondent ever lived, and undertook to deprive respondent of his day in court by an agreement found in the supposed note, which he, himself, swears was not put in the note or left in the printed form by any agreement with respondent, and says on the contrary that such an agreement was not mentioned at or prior to the time the supposed note was signed. Appellant says that he asked his brother to sign a note, not a confession of judgment. The respondent testifies that he never intended to sign an agreement to confess judgment. There never was any agreement or understanding that he should sign such a paper, so that it is conceded by all of the testimony that respondent signed this supposed note under the impression that it was simply a written evidence of his debt to appellant. He had a right to rely on that fact under the circumstances. Without such an agreement it is clear that the judgment is an absolute nullity. Pennoyer v. Neff, 95 U.S. 714; Williams v. Monroe, 125 Mo. 574. (a) The judgment, if rendered in the State of Missouri could not be upheld; conceding that the agreement in the note had been entered into with full knowledge of its force and effect, such course of procedure is against the policy of our law. Burr & Co. v. Mathers & Co., 51 Mo.App. 470. (b) Before a defendant can be deprived of his day in court, his waiver of this important right must appear by clear and cogent testimony. Baner v. Sampson, 102 Ind. 262; Supreme Council v. Garris, 104 Ind. 133; Kesler v. Indianapolis, 88 Ind. 460; Ins. Co. v. Morse, 20 Wall. 445. (3) The respondent's defense to the judgment called in question does not seek to set it aside, but is based on the fact that the judgment is void for want of jurisdiction in the court rendering it over the person of the defendant. There was not only substantial testimony supporting every allegation in respondent's answer but the most material of them was conceded by appellant in his testimony. (4) We do not dispute the general proposition that where a person, sui juris, signs a contract without evidence tending to show deception, trick or fraud, he is bound by the contract. But that proposition does not help plaintiff. If the respondent did not know that the warrant of attorney was in the supposed note signed by him, then it is beyond question that a deception was practiced on him. (5) Respondent had a perfect right to rely on the fact that his brother had filled out a note instead of a power of attorney to confess judgment, and if he did not know of the deception, the court properly instructed the jury that he was not bound by the contract. Pomeroy v. Benton, 57 Mo. 531; Cottrill v. Krum, 100 Mo. 397; Caldwell v. Henry, 76 Mo. 254; Wannell v. Kem, 57 Mo. 478; Dickson v. Kempinsky, 96 Mo. 258; Spead v. Hollingsworth, 39 P. 496. When a party to a contract inserts terms not agreed upon and the other party signs it without knowledge of the deception, relying on the fact that the contract has been drawn as agreed upon, such contract is void. Wright v. McPike, 70 Mo. 175; Cole Bros. v. Wiedmair, 19 Mo.App. 7; Briggs v. Ewart, 51 Mo. 249; Aultomon v. Olson, 34 Minn. 450; Hutchins v. Pettingell, 58 N.H. 30; Phelps v. Decker, 10 Mass. 278; Stacy v. Ross, 27 Texas 3; VanValkenburg v. Rouk, 12 Johns. 337.

MARSHALL, J. Burgess, C. J., and Sherwood, Brace, and Gantt, JJ., concur; Valliant and Robinson, JJ., dissent.

OPINION

In Banc

MARSHALL J. --

The following opinion was heretofore rendered in this case by Division One of this court:

"Action upon a foreign judgment for $ 7,004. Judgment for defendant. Plaintiff appeals.

"The parties are brothers, and both formerly lived in Ohio. The defendant was in debt to the plaintiff, and on the tenth of November, 1881, was about to remove to Missouri. The plaintiff demanded a settlement and the defendant, as he says, because he would have had trouble if he had not done so, gave the plaintiff his note for four thousand dollars payable at one year, with six per cent interest, in settlement of the debt. The note contained a cognovit authorizing any attorney at law to appear in any court of the United States, waive process, enter appearance and confess judgment against defendant for the amount due on the note including interest and costs, and to release all errors. On the fourteenth of October, 1891, the plaintiff instituted suit against the defendant in the court of common pleas of Stark county, Ohio, upon the note. Pursuant to the terms of the note, W. J. Piero, an attorney of...