First National Bank of Kansas City v. White

• Decision Date: 31 May 1909
• Citation: 120 S.W. 36,220 Mo. 717
• Parties: FIRST NATIONAL BANK OF KANSAS CITY v. JOHN D. WHITE, Appellant
• Court: Missouri Supreme Court

120 S.W. 36

220 Mo. 717

FIRST NATIONAL BANK OF KANSAS CITY v. JOHN D. WHITE, Appellant

Supreme Court of Missouri, First Division

May 31, 1909

Appeal from Jackson Circuit Court. -- Hon. Thos. J. Seehorn, Special Judge.

Reversed.

Samuel Feller and Karnes, New & Krauthoff for appellant.

(1) Defendant contends that the court had no jurisdiction of the subject-matter or over the person of defendant, and had no power or authority to render the judgment. 1. The conditions of the note conferred no authority on C. E. Denham to enter the appearance of the defendant and confess judgment. 2. Said confession of judgment does not comply with the requirements of the laws of Missouri. 3. No authority is given in said note to any attorney at law to admit the truth of the allegations in the plaintiff's petition and to consent to a trial. 4. Plaintiff cannot accomplish indirectly what the law forbids being done directly. 5. Defendant is entitled to his day in court, and he has a good and meritorious defense to said action. It is against the policy of the law of Missouri to recognize conditions such as are contained in the note in question. It certainly cannot be successfully contended that the authority contained in the note can be varied from or enlarged by an attorney at law who may assume to appear for the defendant in a suit brought on the note but that the authority given to such attorney must be strictly adhered to. He can do no other act or thing except that set out in the note. The only authority given to an attorney at law is to enter the appearance of the defendant and waive issuance and service of process and "confess judgment." Even if we admit, which we do not, that said conditions are valid in this State, yet all the attorney can do is to confess judgment. He cannot admit on behalf of defendant the allegations in the petition and consent to a trial, for no such authority is given to him in the note. His authority certainly is special and not general. Denham had no authority to admit the allegations of the petition and consent to a trial. The court had no jurisdiction or authority to enter upon a trial of the cause. It cannot be treated as a judgment by consent, for Denham had no authority to consent to a judgment on behalf of defendant. Manifestly this authority did not comply with the provisions of Secs 790 or 792, R. S. 1899. (2) At common law there were but two kinds of judgments by confession. First, where, after service, the defendant, without plea, confesses the cause of action as just; second, when, after pleading and before trial, the defendant both confesses the cause of action and withdraws the plea, and judgment is entered without trial. In both cases regular process must have been served on defendant. Burr & Co. v. Mather Co., 51 Mo.App. 470. There was no such thing as confession of judgment without issuance and service of process at common law. The only authority to enter judgment by confession without the service of regular process on defendant is that contained in the sections above referred to, and must be strictly complied with in order to confer jurisdiction on the court. Oyster v. Shumate, 12 Mo. 580; Loth v. Faconesowich, 22 Mo.App. 68; Gilbert v. Gilbert, 33 Mo.App. 268. It is against the policy of the laws of Missouri to recognize conditions such as contained in the note in question. Dissenting opinion of Valliant, J., in Crim v. Crim, 162 Mo 544.

Ball & Ryland for respondent.

(1) The warrant of attorney is valid, not being prohibited by statute. 17 Am. and Eng. Ency. Law (2 Ed.), 752; 30 Ib. 106. (2) The court had jurisdiction. Genestelle v. Waugh, 11 Mo. 367; Crim v. Crim, 162 Mo. 544; Vennum v. Martens, 119 Mo.App. 461; Laws 1905, p. 244, sec. 5; Hutchinson v. Palmer (Ala.), 40 So. 339; Bank v. Garland (Mich.), 67 N.W. 559; Teel v. Yost, 128 N.Y. 387; Grubbs v. Blum, 62 Tex. 426; Holmes v. Parker, 125 Ill. 478; Wassell v. Reardon, 11 Ark. 705; Rapley v. Price, 11 Ark. 713; Parker v. Poole, 12 Tex. 86. (3) Judgment rendered on warrant of attorney will not be set aside, unless the defendant affirmatively shows to the satisfaction of the court that he has a meritorious defense. Anderson v. Studebaker, 37 Ill.App. 532; Berg v. Bank, 84 Ill.App. 614; Farwell v. Houston, 151 Ill. 239; Pierce v. Miller, 99 Ill.App. 424, 207 Ill. 188. (4) The attorney appearing and confessing the judgment did not exceed his authority; and the statute relative to the formal confessions of judgment has no application to the case. R. S. 1899, sec. 789; Genestelle v. Waugh, 11 Mo. 367; Teel v. Yost, 128 N.Y. 402; Boyd v. Ward Furniture Co., 38 Mo.App. 210; Adler v. Anderson, 42 Mo.App. 189; Houpt v. Bohl, 75 S.W. 470, 71 Ark. 330.

OPINION

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:

"Kansas City, Mo., Oct. 4, 1905.

"$ 14,758.00.

"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 endorsers 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, Missouri, 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 to 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, Missouri, 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...