Cross v. Moffat

Decision Date03 April 1888
Citation17 P. 771,11 Colo. 210
PartiesCROSS et al. v. MOFFAT.
CourtColorado Supreme Court

Error to superior court of Denver.

David H. Moffat recovered judgment on a note against Lewis Cross and John M. Cross, by confession under a warrant of attorney in the note. Subsequently the makers' motion to set aside the judgment was overruled, and defendants bring error.

Tilford, Gilmore & Rhodes, for plaintiffs in error.

L B. France, for defendant in error.


Under the present practice, we cannot review, by writ of error proceedings that have taken place subsequent to final judgment. Polk v. Butterfield, 9 Colo. 325, 12 P. 216. This disposes of the alleged errors predicated upon the court's action in refusing to vacate the judgment.

The fact that no summons was issued is unimportant. If Clise acted within the authority conferred by the warrant of attorney, and if the judgment can be sustained in other respects, his appearance for plaintiffs in error constituted a waiver of the issuance and service of process. This suggestion answers the argument relating to jurisdiction over the persons of plaintiffs in error. In our judgment, the challenge of the court's jurisdiction over the subject-matter rests upon no better ground.

But one question is presented requiring extended consideration. It is claimed that the final judgment rendered should be set aside because the instrument did not authorize the confession as made in Clise's cognovit at the time the proceeding took place. There is nothing in our statutes that prohibits the procedure adopted in this case. It is fully recognized and generally pursued at common law; and the sections of the Code providing a mode for obtaining judgments without action do not inhibit pursuing this common-law method when authorized by contract of the parties themselves. There is, in fact, an action pending, and the cognovit may appropriately be regarded as an answer to the complaint, the filing of which constitutes a waiver of the issue and service of process. But it is insisted that, after the lapse of so long a period from the date of the instrument as here appears, a legal presumption should be indulged against the authority of one presuming to act under the warrant as attorney for an absent defendant. A certain rule in England, adopted by the courts of king's bench and common pleas, is confidently relied upon by plaintiffs in error to support their position in the foregoing regard. This rule prohibits judgment by confession on a warrant of attorney where more than a year and a day had expired from the date of such warrant, except upon affidavit stating that the instrument is genuine, that the whole or some portion of the debt is yet due, and that the debtor is still alive. The warrant of attorney in the case at bar was over six years old when judgment was entered, and the affidavit filed does not state that the parties were alive, or that the debt remained unpaid. We shall decline to be governed by the English practice mentioned. It rests upon a special rule, originating in the court of king's bench, and not...

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19 cases
  • Cosfriff Brothers v. Miller
    • United States
    • Wyoming Supreme Court
    • March 31, 1902
    ... ... Miller, described in the petition, but not embraced in the ... trespass shown upon the trial ... Upon ... cross-examination, and also by independent testimony, the ... defendants sought to show that the loss of the sheep was ... caused by the unusually severe ... ...
  • Ferranti v. Lewis
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • April 17, 1930
    ...116 A. 308;Levin v. Wenof, 7 N. J. Misc. R. 603, 146 A. 789. See Tell v. Yost, 128 N. Y. 387, 28 N. E. 353,13 L. R. A. 796;Cross v. Moffat, 11 Colo. 210, 17 P. 771;Moe v. Shaffer, 150 Minn. 114, 184 N. W. 785, 18 A. L. R. 1194. The Negotiable Instruments Law was enacted in order to make uni......
  • Rasmussen v. Hagler
    • United States
    • North Dakota Supreme Court
    • June 20, 1906
    ...(Pa.) 1 Monaghan 351, 17 A. 6; Nat. Exch. Bank v. Wiley (Neb.) 3 Neb. Unoff. 716, 92 N.W. 582. The statement of facts in Cross v. Moffat, 11 Colo. 210, 17 P. 771, cited counsel for appellant, is so meager that we are unable to determine to what extent, if at all, that case is an authority f......
  • Barnes v. Union Pac. Ry. Co.
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • January 27, 1893
    ... ... Co., 9 Colo. 597, 603, 14 P. 212; Hunt v. Hayt, ... 10 Colo. 278, 281, 15 P. 410; Jennings v. Rickard, ... 10 Colo. 395, 401, 15 P. 677; Cross v. Moffat, 11 ... Colo. 210, 212, 17 P. 771. The judgment below is reversed, ... with costs, and with directions to allow the defendant ... ...
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