Farmers' Exch. Bank of Elvaston v. Sollars

• Decision Date: 04 October 1933
• Docket Number: No. 21460.,21460.
• Citation: 187 N.E. 289,353 Ill. 224
• Parties: FARMERS' EXCHANGE BANK OF ELVASTON v. SOLLARS.
• Court: Illinois Supreme Court

353 Ill. 224

187 N.E. 289

FARMERS' EXCHANGE BANK OF ELVASTON

v.SOLLARS.

No. 21460.

Supreme Court of Illinois.

June 22, 1933.

Rehearing Denied Oct. 4, 1933.

Error to Appellate Court, Third District, on Appeal from Circuit Court, Hancock County; George C. Hillyer, Judge.

Proceeding by the Farmers' Exchange Bank of Elvaston against Marie Sollars, in which a judgment by confession was entered in favor of plaintiff. A judgment vacating the judgment by confession on defendant's motion was affirmed by the Appellate Court (265 Ill. App. 98), and plaintiff brings certiorari.

Judgments of the Appellate and circuit courts reversed, and cause remanded to the circuit court, with directions.

STONE, FARTHING and SHAW, JJ., dissenting.

John W. Williams and O'Harra, O'Harra & Roeth, all of Carthage, for plaintiff in error.

Clyde P. Johnson and Mack & Mack, all of Carthage, for defendant in error.

JONES, Justice.

Judgment by confession was entered in the circuit court of Hancock county, Ill., in vacation, during the June term, 1930, in favor of plaintiff in error, the Farmers' Exchange Bank of Elvaston, and against defendant in error, Marie Sollars, the sole defendant, on two notes, one for $3,000 and the other for $600, signed by Marie Sollars and her husband, J. E. Sollars. The declaration set forth that Sollars had died prior to the institution of the suit. The instruments embodying the two notes are identical, except for the dates and amounts. The instrument embodying the $3,000 note is as follows:

‘$3000

Elvaston, Ill. Dec. 5, 1929.

‘Six months after date, we, or either of us, for value received promise to pay to the order of the Farmers Exchange Bank three thousand dollars, with interest thereon from date until paid, at the rate of seven per cent per annum, payable annually at the Farmer's Exchange Bank of Elvaston, Illinois.

‘And it not paid whem due and placed in the hands of an attorney for collection the further sum of ten per cent upon the amount due as attorney's fees, the same to be included in any judgment rendered hereon. The markers and all endorsers hereof severally waive presentment for payment, notice of nonpayment, protest and notice of protest of this note, and to secure the payment of said amount authority is hereby irrevocably given to any attorney of any court of record to appear for the undersigned in any court of record, in term time or vacation, at any time hereafter, either before or after the maturity of this note, and waive the issuance and service of process and confess judgment against the undersigned in favor of the holder of this note for the amount of the above note and all costs, including said ten per cent of the amount due as attorney's fees, and to file a cognovit for the amount and an agreement waiving and releasing all errors which may intervene in any such proceeding, and with an agreement that no writ of error or appeal shall be prosecuted upon such judgment nor shall any bill in equity be filed to intervene in any manner therewith, and also to consent to the immediate issuance of an exception upon said judgment, all that said attorney may do by virtue hereof being hereby ratified.

‘J. E. Sollars, [Seal]

‘Marie Sollars. [Seal]

‘P. O. _____

‘No. 8677 due June 3.’

Following the entry of the judgment, execution was issued and served on defendant in error and returned nulla bona, and garnishment proceedings were then instituted and writs issued and served upon various garnishees. On October 20, 1930, a special appearance was filed and motion made in the circuit court on behalf of defendant in error to vacate the judgment for want of jurisdiction. The motion was based on the fact that the warrants or powers of attorney to confess judgment were joint and not joint and several, and that therefore the court had no power or jurisdiction to enter judgment by confession against only one of the signers. The court allowed the motion and vacated the judgment. On appeal this action of the trial court was affirmed by the Appellate Court for the Third District. The case is here on a writ of certiorari issued by this court.

In Mayer v. Pick, 192 Ill. 561, 61 N. E. 416,85 Am. St. Rep. 352, we held that a warrant or power of attorney to confess judgment on a note does not authorize confession of a judgment against only one of the signers if the warrant is joint and not joint and several. This decision was followed and the same rule applied in Keen v. Bump, 286 Ill. 11, 121 N. E. 251, decided in 1918.

Plaintiff in error contends that the promise to pay and the warrant to confess judgment here involved are in terms joint and several, and that therefore the two decisions above referred to have no application, and the judgment was properly confessed against only one of the signers.

[2] Although it was held in Mayer v. Pick and Keen v. Bump, supra, that the mere fact the promissory note portion of an instrument is joint and several would not affect the character of the warrant or power of attorney if the latter were, in fact, joint, it does not necessarily follow that the provisions of the note may not be considered in determining whether the warrant is, in fact, joint or joint and several. Where, as here, the undertakings of the signers are all contained in a single instrument, it is proper to consider all of its provisions in construing any portion of it. The promissory note features of the instruments in this case are by their terms joint and several. The second paragraph of the instruments contains the warrant of attorney, and provides that ‘the makers and all endorsers hereof severally waive presentment for payment, notice of non-payment, protest and notice of protest of this note,’ etc. Without interruption, and in the same sentence, the instruments continue by providing that ‘authority is hereby irrevocably given to any attorney of any court of record to appear for the undersigned’ and to confess judgment against the ‘undersigned.’ In Webster's New International Dictionary (1927) the words ‘the undersigned’ are defined to mean: ‘The person whose name is signed or the persons whose names are signed at the end of the document; the subscriber or subscribers.’ The word ‘undersigned,’ as used in the instruments in question, may be interpreted as referring to the acts of the two parties severally as well as jointly, and, in view of the other language of the instruments definitely indicating the intention and purpose of the signers to act and be bound severally as well as jointly, we think a fair construction of the instruments leads to the conclusion that the warrants or powers of attorney were intended to be joint and several. In this respect the instruments differ materially from the one involved in Mayer v. Pick, supra. In that case, although the promise to pay was expressly made ‘jointly and severally,’ the warrant or power of attorney used only the plurals ‘we’ and ‘us,’ words which are in terms clearly joint only, and not in terms joint and several.

The circuit and Appellate Courts therefore erred in the holding that the warrants of attorney in the notes sued on were joint and not several as well as joint.

For the error indicated, the judgments of the Appellate and circuit courts are reversed, and the cause is remanded to the circuit court of Hancock county, with directions to dismiss the motion to vacate the judgment heretofore obtained by the Farmers' Exchange Bank of Elvaston.

Reversed and remanded, with directions.

STONE, Justice (dissenting).

I cannot concur in the majority opinion. While it may be conceded that the undertakings of the signers of the instrument involved here are to be found within the four corners of that instrument, yet under the rules of law applicable they are not one and the same undertaking. Within that instrument is the promissory note, made by its language joint and several. There is also the provision waiving presentment, notice, protest, and the like, which is likewise by its language made a joint and several undertaking. The warrant of attorney, while appearing in the same paragraph without punctuation, is another and separate agreement, and the fact that the note and waiver of protest are joint and several does not require that the warrant of attorneybe so construed. Keen v. Bump, 286 Ill. 11, 121 N. E. 251, 252; Gee v. Lane, 15 East. 592; Manufacturers' & Mechanics' Bank v. St....