Egley v. T.B. Bennett & Co., 11371.

• Decision Date: 31 May 1923
• Docket Number: No. 11371.,11371.
• Parties: EGLEY v. T. B. BENNETT & CO.
• Court: Indiana Appellate Court

139 N.E. 385

EGLEY

v.T. B. BENNETT & CO.^*

No. 11371.

Appellate Court of Indiana.

May 31, 1923.

May 31, 1923.

Appeal from Circuit Court, Wells County; Frank W. Gordon, Judge.

Action by T. B. Bennett & Co. against Moah Egley. Judgment for plaintiff, and defendant appeals. Affirmed.

Leonard, Rose & Zollars, of Ft. Wayne, for appellant.

Adsit & Thompson, of Pontiac, Sturgis & Stine, of Bluffton, and Breen & Morris, of Ft. Wayne, for appellee.

REMY, J.

On January 21, 1917, appellant was a resident of the city of Ft. Wayne, Ind., and appellee was an Illinois corporation, with its principal office in the city of Flanagan, Livingston county, in that state. On that date, at the city of Flanagan, appellee prepared for execution by appellant a promissory note for $1,875 and interest, due 90 days after date, “payable at the Flanagan State Bank.” The note was dated “Flanagan, Ill., Jan. 21, 1917,” and was in the usual form, except that it contained the following stipulation:

“I hereby irrevocable make any attorney at law my attorney for me and in my name to appear in any court of record, in term time or in vacation, at any time hereafter, to waive service of process and confess a judgment on this note in favor of the payee, his assigns or the legal holder, for such sum as shall then appear to be due, including an attorney's fee of $25 and ten per cent. additional on the excess of principal and interest over and above $200 and costs; to agree that no writ of error or appeal shall be prosecuted on such judgment nor any bill in equity exhibited to interfere therewith; to release all errors in entering such judgment or issuing execution thereon, and to consent to immediate execution on such judgment.”

When it was prepared, appellee forwarded the same by mail to appellant at Ft. Wayne, Ind., where on or about January 21, 1917, appellant signed it in the precise form in which it was received by him, and deposited it in the post office at Ft. Wayne, in an envelope properly sealed and stamped, and which was addressed to appellee at Flanagan, Ill. The note was thereupon transmitted and delivered by mail to appellee at Flanagan. At the time of the execution of the note, and at all times since, there was a statute of the state of Illinois providing that-

“Any person for a debt bona fide due may confess judgment for himself or by attorney duly authorized, either in term time or vacation, without process.” Section 88, c. 110, Hurd, 1921.

On May 17, 1918, appellee filed his declaration in the circuit court of Livingston county, Ill., a court of record and of general jurisdiction to recover against appellant on the note; and on the same day an attorney at law appeared for appellant, and, in accordance with the terms of the note, confessed judgment for the full amount thereof, and on behalf of appellant waived right of appeal, and consented that execution might issue immediately. Appellant had no knowledge or notice of the proceeding, and the attorney at law who appeared and confessed judgment had no authority or right to appear for appellant, except such authority as was granted by the terms of the note. The judgment remains unpaid. This action is by appellee against appellant on the Illinois judgment. By a special finding the trial court found the above facts, and stated conclusions of law to the effect that the Illinois court had jurisdiction of the cause, and had authority to render the judgment sued on, and gave appellee judgment. Exceptions to the conclusions of law are assigned as error.

[1] This appeal presents but one question: Is the judgment rendered by the circuit court of Livingston county, Ill., a valid judgment, under the laws of that state? If it is, then, under the full faith and credit clause of the federal Constitution (section 1, art. 4, Const. U. S.), it is not subject to collateral attack in Indiana. Spencer v. Spencer (1903) 31 Ind. App. 321, 67 N. E. 1018, 99 Am. St. Rep. 260;Cohee v. Baer, 134 Ind. 375, 32 N. E. 920, 39 Am. St. Rep. 270.

[2][3][4] The note which formed the basis of the action which resulted in the Illinois judgment having been signed by appellant without condition, and in the precise form in which it had been prepared for execution by the payee, became fully executed when it was placed in an envelope properly sealed and stamped, and deposited in the federal post office. Equitable Life, etc., Soc. v. Perkins (1908) 41 Ind. App. 183, 80 N. E. 682. However, it does not necessarily follow that, because the note was executed in Indiana, it will in all things be governed by the laws of this state. Parties, if they act in good faith, have a right to choose the place where their contract shall be performed, and their executory contract made in Indiana, but to be performed in another state, will, as to performance, be governed by the laws of the place of performance. Midland Steel Co. v. Citizens' Nat. Bk. (1904) 34 Ind. App. 107, 72 N. E. 290;Butler v. Myer (1861) 17 Ind. 77;Scudder v. Union Nat. Bk. (1875) 91 U. S. 406, 23 L. Ed. 245;Hunt's Ex'r v. Hall (1861) 37 Ala. 702;Richardson v. Rowland (1873) 40 Conn. 565; Wharton, Conflict of Laws (3d Ed.) §§ 510d, 510f. As was said by Chief Justice Marshall in Wayman v. Southard (1825) 10 Wheat. 48, 6 L. Ed. 253, it is a “principle of universal law *** that in every forum a contract is” to be “governed by the law with a view to which it was made.” The note here in question was signed in Indiana, where the maker was domiciled at the time, but dated “Flanagan, Ill.” This fact is significant. See Wharton, Conflict of Laws, § 411. Furthermore, the laws of Illinois at the time authorized just such a contract for confession of judgment and warrant of attorney; and, since the performance of a contract in that form was not authorized by the laws of Indiana, it will be presumed that the parties intended to carry out the contract in the state where its performance would be permitted. Pritchard v. Norton (1882) 106 U. S. 124,...