Rev. St. 1899, §§ 789-792 (Ann. St. 1906, pp. 755-757), fully cover the mode and manner of entering judgment by confession on warrant of attorney and abrogate the common law on the subject. Hence where a warrant of attorney is based on the common law, and does not comply with the statute, no valid judgment can be rendered thereunder.
Appeal from Circuit Court, Jackson County; Thos. J. Seehorn, Special Judge.
GRAVES, J.
The record in this case discloses that on October 4, 1905, the defendant executed and delivered to the plaintiff a certain written obligation in the following form: "$14,758.00. Kansas City, Mo. Oct. 4, 1905. Ninety days after date, for value received, we jointly and severally promise to pay the First National Bank of Kansas City, or order, fourteen thousand seven hundred fifty-eight dollars, at its office in Kansas City, Mo., with interest from date at the rate of 7 per cent. per annum until paid. All indorsers and parties hereto jointly and severally waive protest. And we jointly and severally do hereby authorize any attorney at law to appear for us, or any of us, or the survivor or survivors of us, in an action on the above note brought against us, or either of us, or the survivor or survivors of us, by said the First National Bank of Kansas City, at any time after said note becomes due, in any court of record in the state of Missouri or elsewhere, to waive the issuing and service of process against us, or any of us, or the survivor or survivors of us, and confess judgment in favor of said the First National Bank of Kansas City, against us, or any of us, or the survivor or survivors of us, for the amount that may then be due thereon, with interest at the rate therein mentioned, and the costs of suit, together with an attorney's fee of 10 per cent., and also in behalf of us or any of us, or the survivor or survivors of us, to waive and release all errors in said proceedings and judgment, and all proceedings, appeals or writ of error thereon. John D. White."
January 19, 1906, the plaintiff filed in the circuit court of Jackson county, Mo., a petition, to which was attached and filed the above written instrument, in this language: "Plaintiff for its cause of action against the defendant states that on the 4th day of October, 1905, the defendant executed and delivered to the plaintiff his promissory note, wherein and whereby for value received he promised to pay for the plaintiff, or its order, ninety days after date, the sum of fourteen thousand seven hundred fifty-eight ($14,758) dollars at plaintiff's office in Kansas City, Mo., with interest from date at the rate of seven per cent. per annum. That said note is now past due, plaintiff is still the owner and holder thereof, and the whole thereof, together with interest, remains due and unpaid; that the defendant, in and by the terms of said note, agreed and authorized any attorney to appear for him in any action brought against him by plaintiff at any time after said note should become due, in any court of record in the state of Missouri, and to waive the issuance and service of process upon him, and to confess judgment in favor of plaintiff and against defendant for the amount that might then be due on said note, with interest at the rate therein mentioned, costs of suit, and an attorney's fee of ten per cent., and to waive and release all errors in said proceedings and judgment and all appeals or writs of error. Said note is herewith filed, marked `Exhibit A' and made part hereof. Wherefore, plaintiff prays judgment against the defendant for said sum of fourteen thousand seven hundred fifty-eight dollars, with interest thereon from October 4, 1905, at the rate of seven per cent. per annum, and with attorney's fee of ten per cent. thereof, and all costs." On the same date, and at the same time, there was filed in said cause the following: "Now comes C. E. Denham, attorney at law, and pursuant to the authority given by the note sued on herein, appears for and enters the appearance of defendant John D. White in the above-entitled cause, waives the issuing and service of process against said defendant, admits that the matters and things stated in the petition herein are true, and consents that judgment may be entered in favor of plaintiff against said defendant as prayed in the petition. John D. White, by C. E. Denham, Attorney at Law."
After the filing of the several instruments set out above, and on the same day, the circuit court of Jackson county entered the following judgment in said cause: "Now comes plaintiff by Ball & Ryland, its attorneys, and comes defendant by C. E. Denham, attorney at law, and said defendant by said attorney enters his appearance herein, and waives issuance and service of process, and consents that this cause may be taken up and heard, and said cause duly coming on to be heard, on the pleadings and evidence, and the court, having heard and considered the same, and being fully advised in the premises, finds for the plaintiff, and that the matters and things alleged in the petition are true, and finds that by the terms of the note sued on defendant authorized said attorney at law to enter his appearance herein and waive issuance and service of process, and to consent that this cause may be now heard and judgment rendered in favor of plaintiff for the amount due on said note, and the court finds that there is now due on said note, and plaintiff is entitled to recover from defendant thereon, the sum of $15,065.51, principal and interest, and the further sum of $1,475.80 as attorney's fees, making a total of $16,541.31. It is therefore considered, ordered, and adjudged by the court that the plaintiff have and recover of and from the defendant the sum of $16,541.31, with interest on $15,065.51 of said sum from this date, at the rate of 7 per cent. per annum, together with all costs, and that plaintiff
have execution hereof. It is further ordered that plaintiff be allowed to withdraw said note from the files upon filing a copy duly attested by the clerk of this court."
The next day, January 20, 1906, the defendant, White, through counsel appearing specially, filed a motion to set aside the foregoing judgment, and late on February 1, 1906, filed an amended motion in this language: "Now on this day comes J. D. White, the defendant, and, appearing specially for the purposes of this motion only, moves the court to set aside and hold for naught a certain alleged judgment rendered against the defendant and in favor of the plaintiff on the 19th day of January, 1906, for $16,941.31, for the following reasons: First. The court had no jurisdiction of the subject-matter or over the defendant, and had no power or authority to render the alleged judgment. Second. Said cause of action was filed on January 19, 1906, and immediately thereafter, and without notice to the defendant, the court undertook to render judgment against the defendant. That the defendant was not served with summons; neither did he enter his appearance in said cause, or authorize any one else to enter his appearance therein for or on his behalf. Third. That C. E. Denham is associated with Ball & Ryland, attorneys for plaintiff herein. That the defendant never at any time authorized said C. E. Denham to represent him in any manner, or to enter his appearance in this case, or to do anything whatsoever for or on behalf in connection with this action. That the defendant had no notice or knowledge of the fact that the plaintiff had instituted an action against him, or that said C. E. Denham pretended to act for him, or had pretended to enter his appearance in said case until January 20, 1906, the day after the said pretended judgment was rendered. Fourth. That the defendant has a good and meritorious defense to said cause of action, in that said note was given without consideration. That the defendant never received anything of value...
