George Edward Day Sons v. Robb et al., 19631.

• Decision Date: 01 April 1940
• Docket Number: No. 19631.,19631.
• Citation: 139 S.W.2d 533
• Parties: GEORGE EDWARD DAY SONS, APPELLANT, v. JEFFERSON ROBB ET AL., RESPONDENTS.
• Court: Missouri Court of Appeals

139 S.W.2d 533

GEORGE EDWARD DAY SONS, APPELLANT, v. JEFFERSON ROBB ET AL., RESPONDENTS.

No. 19631.

Kansas City Court of Appeals, Missouri.

April 1, 1940.

Certiorari quashed. April 18, 1941.

Appeal from Circuit Court of Adair County. — Hon. Walter M. Hilbert, Special Judge.

REVERSED AND REMANDED (with directions).

Rieger & Rieger and Edward J. Flynn for appellant.

(1) The court erred in finding for defendants because there was no evidence to base that finding upon. The defendants offered no evidence, hence their only defense to this judgment could have been payment. The judgment roll made a prima facie case for plaintiff. 34 C.J., page 1120, par. 1594; Lacey Co. v. Natl. Finance Corp., 79 S.W. (2d) 1078. (2) The court erred in adjudging that the judgment of Illinois court was not valid in Missouri. The note sued upon was an Illinois contract, signed by defendants in the very county and city where the judgment was taken against them. The Illinois judgment was valid in that state and in Missouri. Jarrett v. Sippely, 175 Mo. App. 197; Crim v. Crim, 162 Mo. 544; Const. U.S., art. 4, sec. 1. (3) The court erred in adjudging that the defendants were not represented by attorney Robert E. Harmon, when the judgment of the Illinois court was obtained and entered. The judgment roll of the Illinois court showed that plaintiff was represented by Edward J. Flynn, "attorney for plaintiff." Defendants were represented by "Robert E. Harmon, attorney for defendants." Vennum v. Mertens, 119 Mo. App. 463. (4) The judgment roll of the Circuit Court of Sangamon County, Illinois, shows jurisdiction of that court over the subject of the action and over the parties thereto, and the court herein erred in not so holding. The court had jurisdiction for the plaintiff lived in that county and the note was signed by defendants in person in that county and the circuit court of that county, shown to be a court of record and the certificate of the circuit judge and of the clerk shows jurisdiction over the subject-matter and of the defendants who signed the note and paid one-third of it to plaintiff in Illinois. Jarrett v. Sippely, supra; 34 C.J., page 1127, par. 1603.

John Campbell for respondents.

The Illinois judgment was invalid. Bonnet-Brown Sales Service Co. v. Utt, 19 S.W. (2d) 888.

KEMP, J.

This suit was brought in the Circuit Court of Adair County, Missouri, upon a judgment obtained by the appellant against respondents in the Circuit Court of Sangamon County, Illinois. By agreement of the parties, a jury was waived, and the case was tried before Honorable Walter M. Hilbert, sitting as Special Judge. There was a judgment for the defendants, from which judgment plaintiff has duly prosecuted this appeal. We shall continue to refer to appellant as plaintiff, and to respondents as defendants.

The record shows that on May 10, 1932, each of the three defendants signed, at Springfield, Sangamon County, Illinois, a promissory note in the principal sum of $1200, with interest from date at the rate of five per cent per annum, payable in monthly installments beginning June 1, 1932. Included in its terms, the note contained the following warrant of attorney and acceleration clause, to-wit:

"And to secure the payment of said amount, we hereby authorize, irrevocably, any attorney of any Court of Record to appear for us in such Court, in term time or vacation, at any time hereafter, and confess a judgment without process, in favor of the holder of this Note, for such amount as may appear to be unpaid thereon, together with costs and ten per cent (10) attorney's fees, and to waive and release all errors which may intervene upon such judgment hereby ratifying and confirming all that said attorney may do by virtue hereof.

"It is expressly agreed and covenanted that in case of default of payment of any of the monthly installments that all remaining installments shall at the option of the holder become immediately due and payable without notice."

Endorsements on the back of the note showed payments by defendants of installments up until February, 1933, but none thereafter. Following defaults in the payment of further installments, and on June 22, 1937, plaintiff filed suit on said note in the Circuit Court of Sangamon County, Illinois, alleging that there was then due upon said note, for principal and interest, the aggregate sum of $1011.91, and the further sum of $101 for attorney's fees, or a total amount of $1112.91.

The record shows that on the same day the suit was filed, Robert E. Harmon, purportedly acting as attorney for the defendants under the terms of the note, waived service of process and entered the appearance of defendants and confessed that defendants were indebted to plaintiff, as alleged in plaintiff's petition or complaint, and agreed that judgment be entered against defendants for the said sum of $1112.91. Plaintiff offered evidence tending to show the genuineness of the signatures of the defendants to the instrument sued upon. Whereupon, the court rendered judgment in favor of plaintiff and against the defendants, the terms of said judgment being hereinafter more particularly referred to.

Thereafter, plaintiff instituted suit on this foreign judgment in the Circuit Court of Adair County, Missouri, as aforesaid.

The answer in the instant suit consisted of a general denial and the following special pleas: That the signatures of the defendants to the note did not confer any authority upon any person to enter the appearance of the defendants to any suit or action within the State of Illinois, or elsewhere; that the Sangamon County Circuit Court of Illinois did not have jurisdiction either of the subject-matter of the purported action set out in the petition or of the persons of the defendants, and hence the pretended judgment sued upon was void; alleged that the "pretended judgment was rendered, if at all, without service of summons or other process upon these defendants or either of them or of any person authorized to appear for them or either of them," and that said pretended judgment "should not be enforced or given any faith or credit in this state, because to do so would deprive these defendants and each of them of their property without due process of law, contrary to the provisions of Section 20 of Article II of the Constitution of Missouri, and Section 1 of Article XIV of the Constitution of the United States."

Upon the trial of the suit on the judgment, plaintiff offered in evidence a complete transcript of the proceedings in the Circuit Court of Sangamon County, Illinois, before the Honorable Lawrence E. Stone, Judge of the Seventh Judicial Circuit of said State, which transcript contained the judgment roll pertaining to said cause of action and narr and cognovit and note attached thereto, all of which court record was duly certified under the Act of Congress. There were no findings of fact or conclusions of law requested or given.

The sole question raised by the briefs on either side is whether or not Robert E. Harmon, who was unknown to the defendants, was authorized and empowered to waive service of process upon behalf of the defendants and to enter their appearance and to confess judgment.

In a brief comprising approximately one and one-half printed pages, defendants urge that the judgment rendered in their favor in this case should be affirmed on grounds completely summarized in the concluding paragraph of their brief, which is as follows:

"Inasmuch as the Illinois record herein fails to show that Harmon was an attorney of `any Court of Record,' the requirement stated in the narr and cognovit, plaintiff-appellant's suit failed, there being no other basis of jurisdiction, and an absence of process or entry of appearance; and the court below so held. Appellant's statement, as is the recital of the Illinois record, Exhibit 1, that Harmon was the `authorized' attorney of defendants, amounts only to a mere conclusion."

In support of this contention, defendants cite a single authority, to-wit, Bonnet-Brown Sales Service Co. v. Utt 19 S.W. (2d) 888. Defendants urged that upon facts closely analogous to those in the case at bar, it was there ruled that the record did not show a strict compliance with the provisions of the warrant of attorney in the note, in that it failed to disclose that the person purporting...