Cuykendall v. Doe

• Decision Date: 18 January 1906
• Citation: 105 N.W. 698,129 Iowa 453
• Parties: J. WALTER CUYKENDALL, Appellant, v. NELSON R. DOE, Appellee
• Court: Iowa Supreme Court

105 N.W. 698

129 Iowa 453

J. WALTER CUYKENDALL, Appellant, v. NELSON R. DOE, Appellee

Supreme Court of Iowa, Des Moines

January 18, 1906

Appeal from Cass District Court.-- HON. O. D. WHEELER, Judge.

Decree affirmed.

J. B Rockafellow and Follett & Curtis, for appellant.

James B. Bruff, for appellee.

OPINION

The opinion states the case. Affirmed.

WEAVER J.

On May 3, 1884, the plaintiff, J. Walter Cuykendall, then residing in the state of Delaware and being indebted to the defendant Nelson R. Doe, made and delivered to said defendant his promissory note or written promise to pay the sum of $ 150, with interest, on or before January 1, 1885. Following said written promise, and as a part of same instrument subscribed by the plaintiff, was the following clause:

And further I do hereby authorize and empower any attorney or prothonotary of any court of record, within the State of Delaware, or elsewhere, to appear for me at the suit of Nelson R. Doe, his executors, administrators or assigns, and thereupon to confess judgment on the above obligation against me to the said Nelson R. Doe, his executors, administrators or assigns, as of the last week, or any other subsequent term or time after the date hereof, with stay of execution until the first day of January, 1885, aforesaid and I do hereby release all and all manner of errors or error in any such judgment, and in the execution to be issued thereon.

Soon after the making of this obligation plaintiff removed from the state of Delaware and at no time since has been a resident therein. He has been a resident of Iowa continuously from the year 1890 to the present. The debt represented by the note has never been paid.

By the statutes of Delaware it is made the duty of the prothonotary or clerk of a court of record, "on application of the obligee, or assignee, of a bond containing a warrant for an attorney at law or other person to confess judgment, to enter judgment against the person who executed the same, for the amount which, from the face, appears to be due, without the agency of an attorney, or declaration filed, and with such stay of execution as may be herein mentioned; particularly mentioned on his docket, the real debt and time from which interest is to be calculated." Laws Del. 1852, page 102, chapter 37, section 5. It is also further provided that: "A judgment, entered by the prothonotary of the superior court upon an obligation, without declaration filed, according to the provisions of section 5, chapter 37, shall have the same force and effect as if a declaration had been filed and judgment confessed by an attorney, or judgment obtained in open court." Id. page 391, chapter 110, section 13.

On September 25, 1900, one William F. Cansey, an attorney at law, claiming to act under the authority of the warrant of attorney contained in the aforesaid written obligation, confessed judgment thereon in favor of the defendant herein in the Superior Court of Delaware in and for Sussex county. The entry of said judgment of record is in the following form:

196Nelson R. Doe

Debt Sine Breve:

And now, to wit, this

vs.

twenty-fifth day of Septem-

ber in the year of our Lord

J. Walter Cuykendall.

one thousand and nine hun-

Note delv'd atty

dred, the defendant, J. Wal-

W. F. Cansey.

ter Cuykendall, appears by

Wm. F. Cansey, Esq., his at-

Debt $ 150.

torney, and confesses judg-

ment to the plaintiff for the

Int. from May 3, 1884.

sum of one hundred and fifty

Atty $ 2.76.

dollars, lawful money of the

state of Delaware, with costs

Pro'y $ 1.19.

of suit and release of all er-

rors.

Payable January 1, 1885.

Entered at 8:20 o'clock

$ 3.77

a. m.

Attest: George W. Jones,

Pd. by pltff's atty.

Pro'y.

Thereafter, as we gather from the record, Doe began an action at law against Cuykendall in the district court of Cass county, Iowa to recover upon the judgment aforesaid, but for some reason dismissed it before trial was had. The note upon which the judgment had been confessed having been brought to this state as a matter of evidence in said proceeding, and being deposited in the hands of the clerk of the trial court, Cuykendall, immediately upon the dismissal of said action, brought this suit in equity, alleging that right of action upon said note and judgment was barred by the statute of limitations, and asking the return of said note, that Doe be enjoined and the note delivered up for cancellation. To this claim the defendant answered, denying that his right of action was barred by the statute of limitations, and by way of counterclaim alleged the recovery of the judgment in Delaware and demanded recovery thereon. Replying to the counterclaim, the plaintiff pleaded the statute of limitations, denied the validity and sufficiency of the confession of judgment, and alleged that the Superior Court of Sussex county, Delaware, never had obtained jurisdiction over the plaintiff for the rendition of such judgment. Upon trial to the court the issues were found in defendant's favor, and judgment rendered against plaintiff on the counterclaim. The plaintiff appeals.

I. It is said that, even conceding the validity of the confession of judgment under the laws of Delaware, the proceeding by which such judgment was obtained is so far out of harmony with our own practice and so contrary to the spirit and policy of our own laws that the courts of Iowa will not recognize such a judgment as affording a ground of recovery. It may be conceded that, while the Constitution of the United States declares that "full faith and credit shall be given in each state to the public arts, records and judicial proceedings, of every other state" (article 4, section 1), it is yet competent for a party, when sued upon a judgment rendered in a foreign state, to impeach its validity for want of jurisdiction in the court rendering it. D'Arcy v. Ketchum, 52 U.S. 165 (13 L.Ed. 648); Thompson v. Whitman, 85 U.S. 457 (21 L.Ed. 897); Hall v. Lanning, 91 U.S. 160 (23 L.Ed. 271); Pennoyer v. Neff, 95 U.S. 714 (24 L.Ed. 565). It is also true that there may be judgments which are perfectly valid and enforceable in the state where rendered, yet are not entitled to full faith and credit under the constitutional provisions above referred to. Steel v. Smith, 7 Watts & Serg. 447; Weaver v. Boggs, 38 Md. 255; Grover & Baker Sewing Mach. Co. v. Radcliffe, 66 Md. 511 (8 A. 265); same case on appeal, 137 U.S. 287 (11 S.Ct. 92, 34 L.Ed. 670).

But none of the exceptional cases appear to go to the extent contended for by appellant. Confession of judgment under warrant of attorney is a practice which has prevailed in many, if not most, of the older states of the Union from an early day. Wherever the Legislature has recognized such contracts and provided for their enforcement, the courts have universally upheld the validity of the statute. Recognizing the somewhat drastic nature of the proceeding and the possibility of its abuse, the courts are everywhere disposed to construe the power thus given by the debtor very strictly, and to refuse to give force and effect to a confession not made in accordance therewith, but, where the power has not been exceeded and the judgment has been regularly confessed and entered in a court of the state where the debtor resided when the warrant is executed, we find no case where recognition has been denied it in another state. In executing the warrant of attorney authorizing another person to confess judgment in his name, the debtor is held to have in view the laws and practice of the state of which he is a subject, and to consent in advance that the person presenting the warrant may be considered his representative with power to submit to the jurisdiction of the court.

The holding in Grover & Baker Sewing Mach. Co. v. Radcliffe, 137 U.S. 287 (11 S.Ct. 92, 34 L.Ed. 670), cited and relied upon by the appellant, is not opposed to this doctrine. In that case the obligation and the warrant of attorney were a New York contract, while the obligor whose rights were involved was a citizen of Maryland. By the warrant the obligor authorized "any attorney of record in the state of New York, or any other state, to confess judgment" against him. The holder of the obligation and warrant of attorney did not place the instrument in the hands of an attorney for a confession of judgment, but deposited it directly with the prothonotary of a court in Pennsylvania, and judgment was entered thereon without a formal confession by any person. This departure from the terms of the warrant was in strict accordance with a statute of the state of Pennsylvania, and the judgment entered thereon was without doubt enforceable within its jurisdiction. When suit was brought upon such judgment in Maryland against the obligor residing in that state, the court denied a recovery, holding the judgment to have been rendered without jurisdiction; and this holding was affirmed in the Supreme Court of the United States. Referring to the argument advanced that, as the statute of the state of Pennsylvania authorizing the prothonotary to enter such judgment without an appearance and without the intervention of, or confession by, an attorney, was in force at the date of the contract, it should be considered as a part of it, the court says:

But we do not think that a citizen of another State than Pennsylvania can be thus presumptively held to knowledge and acceptance of particular statutes of the latter State. What Benge authorized was a confession of judgment by any attorney of any court of record in the State of New York, or any other State, and he had a right to insist upon the letter of the authority there conferred.

In other words, the judgment was held void, not because the warrant of attorney was invalid, but because its...