Fortune Bldg. & Loan Ass'n v. Codomo

• Decision Date: 07 November 1938
• Docket Number: No. 413.,413.
• Citation: 7 A.2d 880,122 N.J.L. 565
• Parties: FORTUNE BUILDING & LOAN ASS'N v. CODOMO et al.
• Court: New Jersey Supreme Court

7 A.2d 880

122 N.J.L. 565

FORTUNE BUILDING & LOAN ASS'N

v. CODOMO et al.

No. 413.

Supreme Court of New Jersey.

Nov. 7, 1938.

Syllabus by the Court.

1. The secretary of a corporate plaintiff is not by virtue of his office, the agent of the plaintiff, for the purpose of making the affidavit required by statute (R.S. 2:27-275, N.J.S.A. 2:27-275) as a prerequisite to the entry of a confessed judgment on bond and warrant.

2. Judgment by cognovit actionem may be entered in this State without affidavit, but only after process served.

3. Where the record of a confessed judgment on bond and warrant and without process is clear on its face, and the affidavit sufficient, but equitable features appear by way of defence, the judgment may be opened as a matter of discretion on equitable terms. But where some legal requisite is omitted or not substantially complied with, the judgment will be set aside in toto.

Action by the Fortune Building & Loan Association against Carmela and Ralph Codomo, wherein a judgment by confession was entered. On rule to show cause why a rule vacating a judgment entered by confession should not be itself vacated and judgment reinstated, why an issue should not be framed and a trial had thereon, and why the trustees in liquidation of the plaintiff should not be substituted as plaintiffs in the action.

Rule to show cause discharged.

Argued October term, 1938, before TRENCHARD and PARKER, JJ.

Joseph T. Lieblich, of Paterson, for plaintiff.

Sidney Finkel, of Newark, for defendants.

PER CURIAM.

This is a rule to show cause, allowed by Mr. Justice Heher at circuit, (a) why a rule vacating a judgment entered as by confession, should not be itself vacated and the judgment reinstated: (b, c) why an issue should not be framed and trial had thereon: (d) why the trustees in liquidation of the plaintiff should not be substituted as plaintiffs herein.

We are of the opinion that on the general merits the rule should be discharged. The matter of substituting the trustees therefore needs no consideration.

The application to vacate the judgment was argued some months ago before a single justice, and granted by him. The principal ground on which his decision rested was that the affidavit of "plaintiff, his attorney or agent" required by statute was the affidavit of the secretary of a Building and Loan Association, and that it failed to state that affiant was the agent of the Association for the purpose of making such affidavit, although our cases hold that the secretary of a corporation is not, by virtue of his office, the agent of such corporation for the purpose of making the affidavit. Stember v. Manhattan Electric Supply Co., 115 N.J.L. 360, 180 A. 424, and cases cited. That was a chattel mortgage case, but the principle is the same. It is argued that that case does not support the ruling, but we think that it does, and is binding on us, and in line with it is the equity case of Pincus v. United States Dyeing & Cleaning Works, 99 N.J. Eq. 160, 133 A. 66.

In connection with this matter of the affidavit, it is further argued that an affidavit was needless, because the proceeding was an instance of "cognovit actionem" at the common law. Judging from the opinion of the justice who ordered the judgment set aside, which opinion is part of the state of the case before us, this point was not made before him, but in any event we have considered it and conclude that it is without substance. Turning to the English practice books, we find in Archbold's Practice, Part IV, Chapter 1, that "a cognovit may be given at any time after the process is sued out, and even before it is served, or before the plaintiff has declared: but this is not very usual." So in Tidd's Practice, Chapter 22 (Judgments by Confession). "In general however, the confession (by cognovit) is made after declaration and before plea." Confession of judgment by warrant of attorney was also common practice in England, and is separately treated. Tidd, Chap. 21, p. 545: Archbold, Art. IV, Chap. 2, p. 682, 7th Eng. Edition. In cases of confession by warrant of attorney, no process was necessary: in cases of cognovit process was usual, though its necessity a matter of some disagreement as between the different courts (King's Bench, Common Pleas and Exchequer). In New Jersey, however, a distinction was early drawn between confessed judgments entered by warrant of attorney without process, and judgments confessed by cognovit. In the latter case, after process served, judgment could be entered on cognovit without affidavit. Budd v. Marvin, 4 N.J.L. 248; Stewart v. Walters, 38 N.J.L. 274. Hoguet v. Wallace, 28 N.J.L. 523, 527. But where suit was entered without process in justice courts, the act of January 29, 1817, forbade entry of judgment without affidavit of good faith, etc., and in Parker v. Griggs, 4 N.J.L. 161, and Young's Adm'rs v. Stout, 10 N.J.L. 302, the Supreme Court said that the defendant himself could invoke the statute. In English v. Sharpe, 15 N.J.L. 457, it was held that his personal representatives could do so as well. The act of 1817 was superseded by other legislation, but the later act cited and quoted in English v. Sharpe (Harr. Comp. 1821-34, p. 248) was held to embrace all courts of record.

We think it clear that in this state the distinction between a judgment on cognovit actionem and what is colloquially called a "confessed judgment" is that in the former case an action has been begun in invitum by the issue of process at the very least, and preferably by the filing of declaration (now called complaint): and in the latter case, i. e., "confession of judgment", and subject to the statute in that regard, judgment is entered on bond and warrant without process: in which case there must be...