Fogg v. Ellis

• Decision Date: 22 May 1901
• Citation: 61 Neb. 829,86 N.W. 494
• Parties: FOGG v. ELLIS ET AL.
• Court: Nebraska Supreme Court

61 Neb. 829

86 N.W. 494

FOGG

v.ELLIS ET AL.

Supreme Court of Nebraska.

May 22, 1901.

Syllabus by the Court.

1. The president and cashier of an incorporated state bank are not authorized to enter a confession of judgment against the corporation, under section 433 of the Code of Civil Procedure, more than two years after the bank has ceased doing business, and upon notes executed by the cashier in the name of the bank after the bank had ceased doing business.

2. When the record shows that no jurisdiction over the defendant has been acquired, the judgment rendered against such defendant is void, and its invalidity may be shown in any action in which it may be called in question. Railroad Co. v. Hitchcock County (Neb.) 84 N. W. 97.

Error from district court, Gage county; Letton, Judge.

Action by E. R. Fogg, receiver, etc., against John Ellis and others, impleaded with Sarah C. Knowles. Judgment for defendants, and against defendant Knowles on her cross bill. Plaintiff brings error, and defendant Knowles brings cross error. Affirmed.E. O. Kretsinger and Griggs, Rinaker & Bibb, for plaintiff in error.

L. W. Colby, for defendant in error Sarah C. Knowles.

W. H. Ashby, for defendant in error Lafayette P. Brown.

L. M. Pemberton, for other defendants in error.

SEDGWICK, C.

In January, 1890, the People's Bank of Beatrice was reorganized as the Nebraska National Bank of Beatrice. The assets and liabilities of the old organization were assumed by the new, and the president and cashier were continued as president and cashier of the new bank. The People's Bank ceased doing business from the time of the reorganization. In July, 1893, E. R. Fogg was appointed receiver of the Nebraska National Bank, it having become insolvent. The receiver found, among the papers of the Nebraska National Bank, four promissory notes, payable to the bank, bearing date, one in October and three in December of 1890. Each of the notes was signed, “People's Bank, by H. L. Ewing, Cashier.” On the 4th day of October, 1894, the receiver filed a petition in the district court of Gage county upon these notes, asking judgment against the People's Bank thereon. Copies of the notes were attached to the petition. On the same day there was filed a written confession of judgment on said petition, and waiver of issuance and service of summons. It was signed, “People's Bank, by John Ellis, Pres.; H. L. Ewing, Cashier.” The plaintiff filed an acceptance of the offer of confession, and judgment was thereupon entered thereon. Afterwards this action was brought by the receiver against these defendants as stockholders of the People's Bank upon said judgment to establish the defendants' liability as stockholders. An answer was filed in the action containing a general denial of the allegations of the petition, and alleging “that the pretended judgment of the plaintiff against the People's Bank of Beatrice, Nebraska, mentioned and referred to in said petition, was rendered upon a pretended confession of judgment made by John Ellis as president, and H. L. Ewing as cashier, of the said People's Bank, in favor of the Nebraska National Bank of Beatrice, Nebraska, of which the said John Ellis was also president, and the said Horace L. Ewing was also cashier; that said pretended confession of judgment was made by said John Ellis as president, and Horace L. Ewing as cashier, long after said People's Bank had been merged into the said Nebraska National Bank, and had ceased to do business, and without any authority whatever from said People's Bank, or the board of directors or stockholders thereof, and upon notes which were without consideration, and the execution of which had never been authorized by the board of directors of said People's Bank; and that said pretended judgment was rendered without authority, and is null and void.” The defendant Knowles answered separately, and asked for an accounting of the affairs of the People's Bank and other relief. The cause was tried by the court without a jury, with findings and judgment for defendants, and finding and judgment against the defendant Knowles on her cross petition. The plaintiff prosecuted error to this court. There is also an appeal by the defendant Knowles. Upon the trial the plaintiff offered in evidence the judgment in favor of E. R. Fogg, receiver, against the People's Bank. The defendants objected to this evidence, and it was excluded by the court. This ruling is now complained of.

1. It is contended that an officer of a corporation on whom service of summons may be made is authorized to enter a confession of judgment against the corporation. This appears to be the rule in some states. Miller v. Banks, 2 Or. 291; 1 Black, Judgm. § 59. Freeman, in the third edition of his work on Judgments (section 545), says this is the rule in Oregon, and cites Miller v. Banks. But in the fourth edition he says this is not the law (section 545). It is not the law in this state. In Howell v. Manufacturing Co., 32 Neb. 627, 49 N. W....