First Nat. Bank v. Garland

• Decision Date: 26 May 1896
• Citation: 109 Mich. 515,67 N.W. 559
• Court: Michigan Supreme Court
• Parties: FIRST NAT. BANK OF ATHENS, OHIO, v. GARLAND ET AL.

67 N.W. 559

109 Mich. 515

FIRST NAT. BANK OF ATHENS, OHIO, v. GARLAND ET AL.

Supreme Court of Michigan

May 26, 1896

Error to circuit court, Bay county; Andrew C. Maxwell, Judge.

Action by the First National Bank of Athens, Ohio, against Michael Garland and others. From a judgment in favor of defendants plaintiff brings error. Reversed.

Van Kleeck & Anneke, for appellant.

Simonson Gillett & Courtright (C. L. Collins, of counsel), for appellee Garland.

HOOKER J.

This action was brought upon a judgment, rendered in favor of the plaintiff and against the defendants in the common pleas court for the county of Athens, in the state of Ohio, by confession of attorney, upon a note reading as follows:

"$5,000. Chillicothe, O., May 29, 1894. Four months after date, we jointly and severally promise to pay the order of George F Hunter five thousand dollars, for value received, with interest at the rate of eight per cent. per annum after maturity. And we hereby jointly and severally authorize and empower any attorney at law, in any court of record, at any time after the above note becomes due, to appear for us, or either of us, without process, in court, and confess judgment for the said amount, interest, and costs, in favor of the payee, legal holder, indorser, or assignee thereof, and release all errors which may accrue in the rendition of such judgment. And we also release the right of appeal, the stay of execution, and the power and privilege to hold exempt from execution any personal or real property belonging to us, or either of us, at and after date of such judgment; and our said attorney is hereby authorized to enter such release in said judgment. National Cotton Seed Oil & Huller Co., per C. W. Washburn, Pt., John W. Barger, Secy. John D. Milburn. T. H. Milburn. G. W. Washburn. R. T. Hough. J. W. Corwin. John W. Washburn. M. Garland. A. J. Dieterich.

"Demand, notice, and protest waived."

Indorsement: "George F. Hunter."

A verdict was directed in behalf of the defendants, and the plaintiff has appealed.

In the circuit court the case turned upon the failure of the judgment entry to include the names of the several defendants, they being designated as said defendants by reference to the title of the cause. It is a general rule that an obscure judgment entry may be construed with reference to the pleadings and record. Foot v. Glover, 4 Blackf. 313; Fowler v. Doyle, 16 Iowa, 534; Bell v. Massey, 14 La. Ann. 843. In Railroad Co. v. City of New Orleans, 14 F. 373, it was held that a judgment might be construed in the light of the opinion rendered. Numerous cases hold that a judgment for or against plaintiffs or defendants generally, the names being omitted, may be explained by a reference to the caption, record, or pleadings. McCartey v. Kittrell, 55 Miss. 253; Smith v. Chenault, 48 Tex. 455; Collins v. Hyslop, 11 Ala. 508; Finnagan v. Manchester, 12 Iowa, 521; Rood v. School District, 1 Doug. (Mich.) 502; Overall v. Pero, 7 Mich. 315.

Counsel for defendants claim that the Ohio judgment was void, and that the direction of the circuit judge was correct for that reason. As grounds for this it is asserted: (1) That the warrant of attorney was void, because too comprehensive, in that it attempted to confer the power to confess judgment upon any attorney in any court in the world. (2) That no valid judgment could be rendered in Ohio without process being issued. We are cited to two cases in support of the first contention, viz.: Carlin v. Taylor, 75 Tenn 667; Davis v. Packer, 8 Ohio Cir. Ct. R. 107. In the former of these, an action was brought in term upon a judgment by confession, rendered in Ohio, upon a warrant of attorney executed in Pennsylvania. This warrant empowered an attorney of record, "within the United States, or elsewhere," to confess judgment, and it was said to be "void for its comprehensive uncertainty." This was going further than the necessities of the occasion required, and the language quoted was qualified by the following: "As we have seen, the note and power of attorney was made in Pennsylvania. Giving to the law of the state its fullest operation, and conceding that, under it, the power to confess judgment might have been exercised within the lines of the state, that power will certainly not be extended to any state in which the holder may see fit to carry or transmit the paper, and have it there construed as constructive and effective notice of proceedings for its enforcement by recovery of judgment for the amount stipulated in its terms to be paid. Otherwise, the state might, by its legislation, affect all the citizens of other states equally with its own, and require of these other states the application of its statutory laws to citizens of such other states and who could not be brought within the jurisdiction of its courts. Such recognition would confer upon one state the power to prescribe rules of practice for...