Desnoyers Shoe Co. v. First Nat. Bank of Litchfield

• Decision Date: 20 December 1900
• Citation: 58 N.E. 994,188 Ill. 312
• Parties: DESNOYERS SHOE CO. v. FIRST NAT. BANK OF LITCHFIELD et al.
• Court: Illinois Supreme Court

188 Ill. 312

58 N.E. 994

DESNOYERS SHOE CO.

v.FIRST NAT. BANK OF LITCHFIELD et al.

Supreme Court of Illinois.

Dec. 20, 1900.

Appeal from appellate court, Third district.

Petition by Henry N. Randle, sheriff, to settle the rights of creditors of H.G. Tuttle to a fund in petitioner's hands raised by execution sales. From a judgment of the appellate court (89 Ill.App. 579) affirming an order of the circuit court setting aside a judgment entered by confession. the Desnoyers Shoe Company appeals. Affirmed.

1. Under Starr & C.Ann.St. (2d Ed.) p. 3083, § 66, authorizing any debtor, by himself or his duly-authorized attorney, to confess judgment in any court of record without process, a judgment, entered under power of attorney, in vacation, without the filing of an affidavit proving the execution of the power of attorney, is void, since without the filing of such affidavit the record would contain no proof of jurisdiction of the person of the defendant.

2. Under Rev.St. c. 101, § 6, providing that an oath may be administered out of the state by any officer authorized by the law of the state where it is administered, and that the officer's certificate under his official seal shall be prima facie evidence of his authority to administer the oath, an affidavit, proving the execution of a power of attorney to confess judgment, sworn to before a notary public in another state, in which the notary failed to state that he was authorized by the law of his state to administer oaths, was a nullity, since it is only where the notary states over his seal that he has such authority that his certificate is prima facie evidence thereof.

3. Where a judgment, entered in vacation under a power of attorney to confess judgment, was void because the affidavit proving the execution of the power of attorney, taken in another state, did not show that the notary who took the affidavit was authorized to administer oaths, the subsequent filing of an amended affidavit, and the introduction in evidence of the statutes of the notary's state, showing that he had such authority, did not cure the defect, since the record must stand by itself, and could not be helped by evidence aliunde.

4. Where a judgment by confession was shown to be void for lack of jurisdiction of the person of the defendant, appellant's contention that a motion to set aside a judgment was an appeal to the equity powers of the court, and would not be granted unless there was a defense on the merits, was not applicable, since the judgment, being absolutely void, was binding on no one, and the court had no discretion in the matter.

H.M. Pollard, for appellant. Zink, Jett & Kinder and Amos Miller, for appellees.

HAND, J.

On the 16th day of September, 1898, the appellant caused a judgment by confession to be entered in vacation, in the circuit court of Montgomery county, against the appellee H.G. Tuttle for $1,563.74, upon eight judgment notes. Execution was immediately issued thereon, and delivered to the sheriff of that county, and by him levied upon a stock of boots and shoes belonging to Tuttle. Subsequently other executions came into the hands of the sheriff against Tuttle, which were levied upon said stock. Upon a sale of the stock the sheriff did not realize a sufficient amount to pay in full all the executions in his hands against Tuttle. At the November term, 1898, of said court, Tuttle made a motion to vacate the judgment in favor of appellant, upon the ground that no affidavit proving the execution of the warrants of attorney was filed with the warrants of attorney at the time said judgment was entered by the clerk of said court, in this: that the notary public, who is a resident of the state of Missouri, who administered the oath to J.B.Desnoyers, whose affidavit was filed with the clerk in proof of the execution of the warrants of attorney upon which appellant's judgment was confessed at the time of the entry of the judgment, did not certify that he had authority, under the law of the state of Missouri, to administer oaths. At the same term the sheriff brought the money received from the sale of the stock levied on by him under said executions into court, and filed a petition therein asking for an order distributing the same among said execution creditors according to their rights and priorities. The creditors entered their appearances, and the court thereupon heard said motion and petition together, and held that the judgment of appellant was void by reason of the insufficiency of said affidavit, refused to allow the appellant leave to amend the same, set aside said judgment, quashed the execution issued thereon, and ordered the proceeds from the sale of said stock, after payment of costs, distributed among the other execution creditors. Appellant, having excepted to such order, perfected an appeal therefrom to the appellate court for the Third district, where the same was affirmed, and the appellant has prosecuted his appeal to this court from such judgment of affirmance.

The statute authorizes any person, by himself or his duly-authorized attorney, to confess judgment in any court of record in this state, either in term time or vacation, without process, for a debt bona fide due, and provides that judgments entered in vacation shall have like force and effect, and from the date thereof become liens in like manner and extent, as judgments entered in term time. Starr & C.Ann.St. (2d Ed.) p. 3083, § 66. The established practice in this state in case of the confession of a judgment in vacation in a court of record requires the plaintiff to file with the clerk of the court a declaration upon his cause of action, the warrant of attorney authorizing the confession of judgment, an affidavit proving the execution thereof, and a cognovit, whereupon the clerk enters judgment. Roundy v. Hunt, 24 Ill. 598;Gardner v. Bunn, 132 Ill. 403, 23 N.E. 1072,7 L.R.A. 729.

The proof of the execution of the warrant of attorney in case of confession of judgment in vacation can only be made by affidavit, and the filing of such affidavit is jurisdictional and a condition precedent to the right of the clerk to enter judgment. If the clerk enter a judgment in vacation where no affidavit has been filed proving the execution of the warrant of attorney, the judgment is absolutely void, and no right can be predicated thereon. Stein v. Good, 115 Ill. 93, 3 N.E. 735; Gardner v. Bunn, supra; Matzenbaugh v. Doyle, 156 Ill. 331, 40 N.E. 935. In Gardner v. Bunn, supra, which was a confession in...