Farquhar v. Petitioner
| Decision Date | 02 April 1912 |
| Citation | 70 W.Va. 738 |
| Parties | Farquhar & Co., etc. v. Dehaven et al. |
| Court | West Virginia Supreme Court |
Execution Judgment Confession Validity.
A judgment, purporting to be by confession of attorneys in fact, on a note, commonly called a judgment note, on warrant of attorney therein, purporting to empower and authorize the payees, or agent, or any prothonotary, or attorney of record, to appear for the makers and in their names, and confess judgment against them in favor of the payees, for the amount, with costs, and release of errors, entered by the clerk, in the clerk's office, in vacation, without process executed on defendant and declaration filed, is illegal and void on its face; and any execution issued thereon is also without warrant of law, illegal and void, and on motion of defendants should be quashed.
Error to Circuit Court, Berkeley County.
Action by Arthur B. Farquhar and others, partners, etc., ' against Charles E. Dehaven and others. Judgment for plaintiffs, and defendants bring error.
Reversed, and Execution Quashed.
J. 0. Henson and Allen B. Noll, for plaintiffs in error.
Martin & Seibert, for defendants in error.
The judgment below to which this writ of error applies, denied the motion of defendants to quash the execution on a judgment in favor of plaintiffs, entered against them, in vacation, by the clerk of the circuit court on September 12, 1910.
The entire record of the judgment as presented here is as follows:
The notes referred to, of which one is copied in the record, are judgment notes, in form like those in use in Pennsylvania, bearing six per cent, interest, and providing for a ten per cent, attorneys fee in addition to all other necessary expenses of collection after maturity. They also contain waiver of presentment and protest, homestead and exemption rights real and personal, and other rights, and also the following material provision: "And we do hereby empower and authorize the said A. B. Farquhar Co. Limited, or agent, or any prothonotary or attorney of any Court of Becord to appear for us and in our name to confess judgment against us and in favor of said A. B. Farquhar Co. Limited, for the above named sum with costs of suit and release of all errors and without stay of execution after the maturity of this note."
The motion to quash assigned as the only ground therefor that the judgment is void, the clerk being without authority to enter the same upon a judgment note, as was done, without suit and service of process.
As both sides agree the question presented is one of first impression in this State. We have no statute, as has Pennsylvania and many other states, regulating the subject. Tn the decision we are called upon to render, we must have recourse to the rules and principles of the common law. in force here, and to our statute law, applicable, and to such judicial decisions and practices in Virginia, in force at the time of the sepaiation, as are prop- erly binding on us. It is pertinent to remark in this connection, that after nearly fifty years of judicial history in this State no case has been brought here involving this question, strong evidence, we think, that such notes, if at all, have never been in very general use in this commonwealth. And in most states where they are current the use of them lias grown up under statutes authorizing them, and regulating the practice of employing them in commercial transactions. In the early Colonial history of Virginia, they seem to have had considerable recognition, but their use was abolished, and prohibited by penal statutes, enacted in 1744, and they did not again come into use until that statute was repealed by the Code of 1849; 5 Hen. Stat. 240, section 4 and 5; Sec. 12, ch. 76, Code 1819; Revisors Code, 826, note. This history is pretty thoroughly covered by the arguments of counsel, and the opinion of Judge Moncure in Insurance Co. v. Barley's Admr., 16 Graf. 363, Anno. 144. We do not wish to be understood, however, as acquiescing in Judge Moncure's exposition of the common law on the subject, vouched in support of the early colonial practices so severely condemned by the statute of 1744. It is significant that this statute does not refer the practice condemned to the common law as its source. Section IV thereof recites: "And whereas a practice has of late been introduced, of taking bonds, commonly called, judgment bonds, with condition, for the payment of money, and a general power to any attorney, to appear, and suifer judgment, etc. * * * *; which practice must be attended with ill consequences, debtors having no previous notice of the time and place of rendering such judgments, whereby they are deprived of an opportunity of making discounts appear against the bond, and are first put to unnecessary law charges, and then obliged to enter into expensive' chancery suits for relief: To remedy whereof, ore."
The substantial features of section V, of this act, are embodied in section 12, chapter 76, Revised Code 1819, reading as follows: "If any Attorney, or other person practising as an Attorney, shall presume to appear under any power of attorney, made before action brought, for confessing or suffering judgment to pass by default or otherwise, for any defendant in any court of record within this Commonwealth, such Attorney shall, for everv such offence, forfeit and pay fifteen hundred dollars, to such defendant, for his own use, to be recovered, with costs, by action of debt or information, in any court of record; and, moreover, shall be liable to an action for damages, at the suit of the party grieved." It was this section which on recommendation of the Revisers, was omitted from the Code of 1849, repealing it, and by which repeal it is argued the common law was thereby restored. We find no justification, either in the history of the common law or elsewhere, for the argument presented here, that the repeal of the statute of 1744 by the Code of 1849, rovived~~airrcufprratrticemot'known to the common law, and which the repealing act itself recites had "of late been introduced." That"the common law so far as affected by Act of 1744, was restored by its repeal we concede, but farther than that we are unwilling to go.
In Insurance Co. v. Barley's Admr.} supra, the latest Virginia case which can be said to have binding force upon us, suit had been brought, but it does not distinctly appear whether or not the process had been executed. The grounds assigned for the motion to set aside the judgment were: (1) That the power of attorney was executed before suit brought; (2) that an attorney in fact not an attorney at law could not confess judgment for his principal; (3) that if an attorney in fact could not confess judgment in open court, only the defendant himself could confess judgment in the clerk's office.
The only points of decision in that case, pertinent in this case, are covered by points 2, 3 and 4 of the syllabus, as follows: (2) "A power of attorney to confess a judgment may be executed before the action is brought." (3) "A judgment may be confessed either in court or in the clerk's office, by an attorney in fact, though the attorney is not a lawyer" (4) "When a statute changing the common law is repealed, the common law is restored to its former state." The fourth point we concede; and limited by the rules and principles of the common law, as modified by our statutes, section 43, chapter 125, and section 2, chapter 134, Code 1906, we do not know that any particular fault can be found with the general character of points 2 and 3. The Revisors of the Code of 1849, in a note, a, s a reason for omitting said section 12, as of no value, say: "We do not perceive any good reason why a power of attorney to confess judgment should not be lawful before a writ is sued out as well as after."
By gradual steps, however, the supreme court of appeals of Virginia, in subsequent decisions, have further innovated on the common law. In Brock enbrough v. Brock enbrough, 31 Grat. 580, 599, it is held, that a judgment rendered in court, upon the confession of the defendant in person, is not subject to collateral attack for lack of process. The judgment in that case, however, was not predicated on the Virginia statute the same as our section 43, chapter 125, supra permitting a defendant in vacation to confess a judgment or decree in the clerk's office. This Court held practically the same thing in Hunter s Bx'rs. v. Stewart, 23 W. Va. 549. But in the later case of ShadracFs Admr. v. Woolfollc, 32 Grat. 709, it was decided, that a judgment confessed by the defendant in the clerk's office in vacation is not the subject of collateral attack by other creditors. By obiter dicta, the court, however, ventured the opinion that if it plainly appeared that the judgment was confessed without a writ or previous process, it...
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