Dickson v. Lindsay

• Decision Date: 15 December 1958
• Docket Number: No. 40912,40912
• Citation: 107 So.2d 732,234 Miss. 684
• Parties: Robert L. DICKSON v. William L. LINDSAY.
• Court: Mississippi Supreme Court

Page 732

107 So.2d 732

234 Miss. 684

Robert L. DICKSON v. William L. LINDSAY.

No. 40912.

Supreme Court of Mississippi.

Dec. 15, 1958.

Roberson, Luckett & Roberson, Clarksdale, for appellant.

Talbot, Sullivan & Dunbar, Clarksdale, for appellee.

ARRINGTON, Justice.

The appellee, William L. Lindsay, filed suit in the County Court of Coahoma County against Robert L. Dickson, the appellant, to recover on a judgment obtained by him in the State of Illinois, and prayed for a writ of attachment against the estate of the appellant in order to satisfy said judgment. The County Court rendered judgment for the appellee and held that the attachment was rightfully sued out. On appeal to the Circuit Court of Coahoma County the judgment was affirmed, hence this appeal.

The appellee charged in his declaration that no part of the judgment sued on had been paid. The appellant answered and admitted that no part of the judgment had been paid, but contended that at the time the judgment was obtained on August 30, 1950, he was not a citizen of Illinois nor within the State; that he was not served with process and had no notice of the suit, and that the Court of Illinois did not have jurisdiction, therefore, the judgment was void and not entitled to full faith and credit. He further contended that the attachment was wrongfully sued out and asked for damages and attorneys' fees.

The Illinois judgment was made an exhibit to the declaration, which is as follows:

'No. 931

'William L. Lindsay, Plaintiff

v.

Robert L. Dickson and Dorothy Mae Dickson, Defendants

'Now, On this 30th day of August, A.D. 1950, it being one of the Regular Judicial days of this Court, comes the Plaintiff, William L. Lindsay by Mitchell and Calvin, his Attorneys, and file his Complaint and file also the instrument in writing on which this suit is brought, to-wit: One (1) promissory note, the execution of which is duly proven in open Court.

'And Now Come also the said defendants, by John L. Knuppel, Attorney, and file herein their warrany of Attorney, duly executed by the said Defendants, authorizing him to appear in any Court of Record in behalf of said Defendants, and waive service of process and confess judgment in favor of said plaintiff, and against said Defendants, for the amount found to be due upon one (1) certain promissory note annexed to said warrant of attorney, and also for the sum of One Hundred Thirty Dollars ($130.00), Attorney's fees, besides the costs of suit, the execution of said warrant of Attorney being duly proven in open Court. And the said Defendants' Attorney also files his Cognovit, by which he waives service of process upon the said Defendants, and confess the said action of the Plaintiff, and that said Plaintiff, by reason of the non-performance of the promises in the Plaintiff's Complaint mentioned, has sustained damages in the sum of One Thousand Four Hundred Ninety-eight (1,498) dollars and Fifty-six (56) cents, it being the amount due on said Note, including Attorney's fees, over and above all costs by him in this behalf expended; and the said Defendants, by their said Attorney, consent and agree that judgment may be entered in this behalf in favor of the said Plaintiff, and against said Defendants, for the amount of damages and Attorney's fees aforesaid, to-wit: For the sum of One Thousand Four Hundred Ninety-eight (1,498) dollars and Fifty-six (56) cents, and for costs of suit; and release all errors in entering up this judgment, or in issuing execution thereon, and consent to the issuing of immediate execution on the same.

'It is therefore considered and adjudged by the Court, that said Plaintiff have and recover of and from the said defendants the said sum of One Thousand Four Hundred Ninety-eight (1,498) dollars and Fifty-six (56) Cents, being the amount of damages, including Attorney's fees, as confessed as aforesaid, together with all costs and charges by him about this suit in this behalf expended, and that he have execution therefor.

'Attest: Marjorie B. Blessman, Clerk.

'(Seal)

Confession Record '1', Page 387.'

The appellant contends, first, that the Court of Illinois did not have jurisdiction to render the judgment sued on, and, second, that the judgment was not properly authenticated in that it did not contain the note and alleged warrant of attorney upon which the judgment was based, and, therefore, was not entitled to full faith and credit.

The judgment is duly authenticated under Title 28, U.S.C.A. Sec. 1738. Article IV, U. S. Constitution, provides: '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 be general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.'

In Jones v. McCormick, 145 Miss. 566, 110 So. 591, 592, this Court held: 'The objection to the certification of this decree is that the copy thereof is not accompanied by a copy of the record on which it was rendered. It is not necessary, in suing on a judgment or decree, to exhibit a copy of the record on which it was rendered. All that is necessary is to allege the required jurisdiction facts and to exhibit a copy of the judgment or decree (34 Cyc. 109).'

The note upon which this judgment was based was duly authenticated and introduced in evidence over the objection of the appellant and reads as follows:

'This Note Is Secured By A Chattel Mortgage Of Even Date Herewith.

'Havana, Illinois

August 8th 1949

$1,300.00

'In Installments After Date for value received, the Undersigned, jointly and severally promise--To pay to the order of

William L. Lindsay

One Thousand Three Hundred and. no/100 Dollars, in installments as follows: $300.00 due and payable July 30th, 1950; $300.00 due and payable July 30th, 1951; $300.00 due and payable July 30th, 1952; and, $400.00 due and payable July 30th, 1953, together with interest payable annually from date at the rate of five (5) percent per annum until paid.

'The undersigned hereby, jointly and severally, empower any attorney of any Court of Record to appear for them, or either or any of them, in such Court in term time or vacation, at any time hereafter and confess a judgment without process against them, or either or any of them, in favor of the legal holder thereof for such sum as may appear to be unpaid thereon together with interest, costs and ten per cent, attorney's fees with minimum attorney fee of $25.00, and to waive and release all errors which may intervene in such proceeding and consent to immediate execution. The makers, sureties, endorsers and guarantors hereof do each hereby waive demand, presentment, notice of non-payment and protest, and do each hereby waive notice of and consent to any and all extensions of this note or any part thereof.

Due _____

Robert L. Dickson

Address _____

Dorothy Mae Dickson'

The appellant admitted that he signed this note and we are of the opinion that its introduction was not error.

The appellant contends that the judgment was void for the reason that the note was not due and was not authorized by the warrant of attorney, and relies on the case of Mayer v. Pick, 192 Ill. 561, 61 N.E. 416. Although this case held that an action cannot be maintained on a note before maturity the main question before the court was whether a joint warrant of attorney would authorize a several judgment against one of the makers. The court held that the authority to confess a judgment under a warrant of attorney must be strictly construed and that a joint warrant of attorney would not authorize a several judgment against one of the makers.

The Illinois Court, in the case of Sherman v. Baddely, 11 Ill. 622, held that where a debtor gives a note and a warrant of attorney, authorizing a confession of judgment to be made for an amount specified in the note before the time given for the payment of the note shall have elapsed, it is not error to render a judgment at any time upon such confession. The Court said: 'The debtor accedes to the proposition, by executing and delivering to the creditor a warrant of attorney, expressly stipulating that the judgment may be taken. * * * The defendant has no right to complain of the judgment, for he deliberately authorized it to be entered. The note was due, for the purpose of the judgment, by the express stipulation of the maker.'

In Bush v. Hanson, 70 Ill. 480, 482, the Court said: 'It appears, from the judgment order, that a declaration, the warrant of attorney, and affidavit of its execution, the note and cognovit by the attorney authorized, were filed. The defendant in the judgment was before the court by appearance by his duly authorized attorney. A case of jurisdiction was then presented. * * * A warrant of attorney to confess judgment is a familiar common law security. The entry of judgment by cognovit thereunder, is a proceeding according to the course of the common law, which courts have ever entertained, in the ordinary exercise of their authority as courts of general jurisdiction.'

In the case of Farwell v. Huston, 151...